(dissenting) — For five years Phillip Mc-Clatchey has been confined without trial at the Special Commitment Center in the Washington State Reformatory. For five years he has received no psychiatric treatment. It is not argued his detention has therapeutically benefited him.
Notwithstanding, the State continues to imprison Mc-Clatchey because he previously molested a young boy, although he has paid for his crime by previously serving, and completing, an 11-year prison sentence. Clerk’s Papers (CP) at 97. RCW 71.09.020(1) defines one as a "sexually violent predator” in part by referencing a prior criminal conviction of a violent sex crime. McClatchey is now incarcerated once again based on a petition filed by the prosecutor alleging he is a "sexually violent predator.”
This court, by divided opinion, previously upheld the "sexually violent predators” statute against a facial constitutional challenge, but only because the detention was accompanied by treatment. In re Young, 122 Wn.2d 1, 23, 857 P.2d 989 (1993).15 However, if a detainee receives no treatment, there is nothing to distinguish this alleged "civil” detention from traditional criminal confinement.
The majority does not reach this issue, however, because it finds McClatchey, although confined, does not have the right to seek freedom through a judicial proceeding prior to trial. Majority at 5. The issue, however, is whether he is now, as he has been for the last five years, incarcerated in violation of his constitutional rights. The majority does not explain what bearing a subsequent trial may have on the legality of his present incarceration. I see none.
The majority may assume the statute grants a right to treatment only to those the State has committed, and Mc-*12Clatchey cannot challenge the conditions of confinement and treatment at SCC because it had not yet committed him. This seems to be a ripeness argument although the majority doesn’t tell us what it is. Ripeness addresses whether "the issues presented are appropriate for judicial resolution at this time.” Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S. Ct. 1507, 1515, 18 L. Ed. 2d 681 (1967). Standing asks who may bring a suit while ripeness asks when that suit may be brought.
To decide whether a cause of action is ripe for judicial determination we look to the fitness of the issues for judicial resolution and the hardship imposed on the parties by withholding court consideration. First Covenant Church v. City of Seattle, 114 Wn.2d 392, 399, 787 P.2d 1352 (1990), cert. granted and judgment vacated by 499 U.S. 901, 111 S. Ct. 1097, 113 L. Ed. 2d 208 (1991). A fit claim is one where " 'the issues raised are primarily legal, do not require further factual development, and the challenged action is final.’ ” First Covenant Church, 114 Wn.2d at 400 (quoting Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624, 627 (9th Cir. 1989), cert. denied by BP Exploration, Inc. v. Baily, 495 U.S. 904, 110 S. Ct. 1923, 109 L. Ed. 2d 287 (1990)).
By insisting McClatchey cannot bring suit until the State subjects him to a commitment trial, the majority essentially argues there are further necessary factual determinations to be made, i.e., those which might be made at a commitment trial. However, McClatchey is presently deprived of his liberty. A trial tomorrow will not change the reality of today. Moreover, the issue of double jeopardy turns on (1) dual punishment and/or (2) the prospect of double trial. The State’s action is final because Mc-Clatchey is presently incarcerated and awaiting trial.
A second trial for the same offense raises the concern of whether or not [the trial court] would be acting in excess of its jurisdiction in proceeding to try the defendant for the offenses charged in the . . . information. Where the constitution prohibits a double jeopardy trial, it would be our view *13that a trial court does exceed its jurisdiction in proceeding with such trial.
State v. Harris, 2 Wn. App. 272, 282, 469 P.2d 937 (1970), rev’d, 78 Wn.2d 894, 480 P.2d 484, rev’d, 404 U.S. 55, 92 S. Ct. 183, 30 L. Ed. 2d 212 (1971). As the Sixth Circuit noted:
One who sets up a defense under the double jeopardy clause to a pending criminal prosecution is asserting a constitutional immunity from having to undergo "the risk or hazard of trial and conviction” and does not seek merely to avoid "the ultimate legal consequences of (an adverse) verdict.” Price v. Georgia, 398 U.S. 323, 331, 90 S. Ct. 1757, 1762, 26 L. Ed. 2d 300 (1970). The "prohibition is not against being twice punished, but against being twice put in jeopardy.” Ball v. United States, 163 U.S. 662, 669, 16 S. Ct. 1192, 1194, 11 L. Ed. 300 (1896). "There is a wide difference between a verdict given and the jeopardy of a verdict,” because the "hazard, peril, danger, jeopardy of a verdict cannot mean a verdict given.” Commonwealth v. Cook, 6 S&R 577, 596 (Pa. 1822). Thus, "if a criminal defendant is to avoid Exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge . . . must be reviewable before that subsequent exposure occurs.” Abney v. United States, 431 U.S. 651, 662, 97 S. Ct. 2034, 2042, 52 L. Ed. 2d 651 (1977).
Gully v. Kunzman, 592 F.2d 283, 286-87 (6th Cir.), cert. denied, 442 U.S. 924, 99 S. Ct. 2850, 61 L. Ed. 2d 292 (1979). McClatchey must therefore be able to challenge a future trial, which he claims will be "a second prosecution,” before such a trial occurs. His case is thus ripe for this reason as well.
McClatchey does not merely challenge the conditions of confinement qua conditions of confinement. He claims the conditions of confinement under which the inmates of SCC are kept are punitive and therefore constitute double punishment. Confinement includes pretrial confinement. He claims this confinement cannot be other than punishment because there is no treatment. A trial will shed no light on this claim.
A plain reading of Young demonstrates the court held *14the commitment was nonpunitive only because treatment is provided to sex offenders: the holding hinges on the treatment. We there held the statute did not violate substantive due process because the State has a compelling interest "in treating sex predators . . . .” Young, 122 Wn.2d at 26. We also held the statute does not implicate a detainee’s Fifth Amendment privilege against self-incrimination because the detainee’s cooperation "with the diagnosis and treatment procedures is essential.” Id. at 52. The decision speaks repeatedly of the need to "care” for sex offenders. Indeed, the decision states unequivocally, "[t]he Statute requires that constitutionally mandated care and treatment be provided . . . .” Id. at 33 (emphasis added). Young distinguished treatment from deterrence and punishment.
However, Young does not address pretrial detention where there is no treatment. McClatchey has been detained without trial or treatment for the. last four-and-a-half years. It is undisputed that McClatchey currently receives none of the treatment that we classified in Young as constitutionally mandated—hence, the obvious conclusion: He is being punished. If incarceration is not punishment because it also provides treatment, confinement without treatment must be punishment.
In Allen the United States Supreme Court addressed the question of the nature of detention and its relationship to punishment. Finding detention constitutionally permissible, the Court noted,
Petitioner has not demonstrated, and the record does not suggest, that "sexually dangerous persons” in Illinois are confined under conditions incompatible with the State’s asserted interest in treatment. Had petitioner shown, for example, that the confinement of such persons imposes on them a regimen which is essentially identical to that imposed upon felons with no need for psychiatric care, this might well be a different case.
Allen v. Illinois, 478 U.S. 364, 373, 106 S. Ct. 2994, 92 L. Ed. 2d 296 (1986). This is a different case. The State confines *15McClatchey in a prison where he receives no psychiatric treatment for his alleged mental abnormality—a condition identical to the confinement of felons. But McClatchey cannot be constitutionally confined again for a crime for which he has already paid a full sentence.
The pretrial detention of sex offenders who have served their sentences but await a commitment trial is constitutionally impermissible because, absent treatment, it is punishment.
Conclusion
Phillip McClatchey has every legal right to seek judicial relief and by law he is entitled to it. His incarceration is exactly that double punishment the Double Jeopardy Clause was adopted to prevent. The circumstances of his current incarceration in that they are roughly equivalent to prison are not disputed. He has served his time. The only fact that will have changed when and if he is tried will be his incarceration will have been that much longer. Let him out.
Reconsideration denied October 6, 1997.
In re Young was disapproved in Young v. Weston, 898 F. Supp. 744, 754 (W.D. Wash. 1995); but see Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (upholding a similar statutory scheme under federal constitution).