(dissenting) — I dissent because the remedy for unconstitutional confinement is release; and expert opinion testimony predicting reoffense is inadmissible where the scientific community has not accepted the reliability of the underlying principles upon which it is based. For dispositive authority I rely upon Young v. Weston, 176 F.3d 1196 (9th Cir. 1999), amended by 192 F.3d 870 (9th Cir. Sept. 16, 1999) (hereinafter “amended (Sept. 16, 1999)”). I posit the majority’s ultimate rationale is the result it seeks, not the legal principles which should guide its inquiry.
I
Remedy for Unconstitutional Confinement is Release
The trial court found procedures employed by the Special Commitment Center (SCC) were “more punitive than that afforded incarcerated criminals in violation of respondents’ substantive due process rights.” Clerk’s Papers (CP) at 2043. Nevertheless, the trial court refused to release Campbell because “the treatment deficiencies are subject to remediation . . . .” CP at 2048. As a result, Campbell was *363consigned by the trial court to remain in unconstitutional confinement based on the legal conclusion that if unconstitutional conditions are capable of correction the unconstitutional incarceration may continue notwithstanding violation of constitutional rights of the prisoner.
The majority acknowledges Campbell is held under unconstitutionally punitive conditions (Majority at 345), but likewise denies him release from custody pursuant to his petition for writ of habeas corpus. Majority at 346, 351. It defends this bizarre result by failing to acknowledge (1) a facially valid statute may nevertheless be unconstitutionally applied and (2) where unconstitutional conditions of confinement render the confinement itself unconstitutional, and there is no alternative constitutional confinement, the habeas corpus remedy is release.
Challenge is As-Applied.
Most fundamentally, the majority confuses a facial challenge to the validity of a statute with a challenge to the way it is applied in fact. Campbell’s claim is as-applied:
Dismissal is required because the State’s punitive conduct towards Mr. Campbell rendered the Statute as applied to him unconstitutionally excessive.
Br. of Appellant at 25. An as-applied challenge puts at issue not the facial validity of the statute but rather the alleged unconstitutional application of the statute to the prisoner. Compare In re Detention of Turay, 139 Wn.2d 379, 390, 986 P.2d 790 (1999). It is specifically not Campbell’s claim, although the majority would mischaracterize it, that “unconstitutional conditions render the sentencing[5] statute, RCW 71.09, unconstitutional . . .,” Majority at 346, at least in the sense he does not deny the statute could be constitutionally applied although it is not here. See also Majority at *364344. Campbell’s as-applied claim is thus identical to that asserted in Young, where Young, imprisoned under the identical Washington sex predator statute, appealed the district court’s denial of his petition for writ of habeas corpus, claiming entitlement to release based upon the punitive nature of his confinement.
In Young the United States Court of Appeals reversed dismissal of the writ, remanding for a fact-finding hearing, holding:
[I]f Young’s confinement pursuant to the Washington statute is punitive, then the statute, as applied to Young, violates the ex post facto and double jeopardy clauses of the United States Constitution.
Young, 176 F.3d at 1199, amended (Sept. 16, 1999).
Campbell’s claim, and the facts supporting it, are indistinguishable from Young’s with one important exception: The lack of treatment and punitive nature of Campbell’s confinement has been factually established by the trial court, is not challenged on appeal, and is therefore a verity for the purpose of our review. Riley v. Rhay, 76 Wn.2d 32, 33, 454 P.2d 820 (1969); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Unlike today’s majority, the United States Court of Appeals recognized the difference between unconstitutional incarceration which results from the misapplication of an otherwise facially valid statute and unconstitutional incarceration which results from a facially invalid statute. Citing the Washington State Supreme Court in In re Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993) and the United States Supreme Court in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), which found the Washington statute, and one nearly identical to it, facially constitutional, the Court of Appeals cautioned neither would “preclude the possibility that the Washington statute, as applied, is punitive.” Young, 176 F.3d at 1199, amended (Sept. 16, 1999). This is in keeping with the role of the judiciary to pronounce judgment on the *365special cases before it and not upon general principles, except by consequence. See City of Chicago v. Morales, 527 U.S. 41, 74-82, 119 S. Ct. 1849, 1867-1871, 144 L. Ed. 2d 67 (1999) (Scalia, J., dissenting). To answer the as-applied question properly, held the Court of Appeals, the court must look to the actual conditions of confinement in order to determine whether the resulting incarceration is constitutional. Young, 176 F.3d at 1199 n.4 (“In cases considering the question whether confinement is criminal or civil, the Supreme Court has always looked to the actual conditions of confinement.” (citing Hendricks, 521 U.S. at 361-67; Allen v. Illinois, 478 U.S. 364, 373-74, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986); and Bell v. Wolfish, 441 U.S. 520, 535-39, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979))); amended (Sept. 16, 1999).
Both Hendricks, 521 U.S. 346, 361, 117 S. Ct. at 2082, and Young, 122 Wn.2d at 35, considered only a facial challenge to the statute, expressly reserving an as-applied challenge. A facial challenge will succeed only if the statute cannot, under any conceivable set of circumstances, be valid. United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed. 697 (1987). Of course one can “conceive” of a program which provides treatment in a therapeutic, nonpunitive setting; however, imagination often exceeds reality.
Given this test, the task to prove a statute facially invalid is a difficult one; however, the burden to prove an unconstitutional application of even a facially valid statute is by a mere preponderance of the evidence. So held the trial court, citing with approval Landman v. Royster, 333 F. Supp. 621, 637 (E.D. Va. 1971) (Prisoner’s due process challenge to administration of prison disciplinary system held subject to burden of proof by a preponderance.); cf. In re Personal Restraint of Powell, 117 Wn.2d 175, 184, 814 P.2d 635 (1991) (In a collateral attack, petitioners “must show by a preponderance of the evidence that a constitutional error has caused them actual prejudice.”); and State v. S.H., 75 Wn. App. 1, 20, 877 P.2d 205 (1994) (In a personal *366restraint petition to challenge whether a juvenile is receiving adequate sex offender treatment at a facility, respondent must show by a preponderance of the evidence that a statutory or constitutional violation has caused him actual prejudice.). CP at 2043-44.
The majority continues: “To the extent Campbell’s claim is proper, he must show by ‘ “the clearest proof” that “the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention” that the proceedings be civil . . . .’ ” (alterations in original) (quoting Allen v. Illinois, 478 U.S. 364, 369, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986)). Majority at 349. Allen supports the position advanced by Campbell because Campbell has in fact proved the punitive nature of his confinement to the trial court’s satisfaction by the clearest proof. This was the exact prospect foreseen in Young v. Weston, amended (Sept. 16, 1999) 192 F.3d 874 (“[W]e conclude that Young has alleged sufficient facts that, if proved, would constitute such ‘clear proof.’ ”).
In Allen the State of Illinois sought civil commitment of Terry B. Allen pursuant to its Sexually Dangerous Persons Act. Allen was interviewed by the state psychiatrist who testified against him at the time of trial over Allen’s objection based upon the self-incrimination clause of the Fifth Amendment. Acknowledging the privilege against self-incrimination does not pertain to civil proceedings, Allen claimed the Illinois statute was substantively criminal on its face. Rejecting the facial claim, the Supreme Court opined,
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. But the record here tells us little or nothing about the regimen at the psychiatric center, and it certainly does not show that there are no relevant differences between confinement there and confinement in the other parts of the maximum-security prison complex. Indeed, counsel for the State assures us that under *367Illinois law sexually dangerous persons must not be treated like ordinary prisoners. We therefore cannot say that the conditions of petitioner’s confinement themselves amount to “punishment” and thus render “criminal” the proceedings which led to confinement.
Allen, 478 U.S. at 373-74 (citation to record omitted).
The distinction drawn in Allen between a commitment statute civil on its face yet punitively applied in practice is precisely the distinction urged by Campbell but ignored by this court’s majority. Here the trial court found the actual conditions of confinement were more punitive than prison. CP at 2048.
Our majority confuses the factual findings of the trial court that the terms and conditions of Campbell’s confinement were punitive (“more punitive than that afforded incarcerated criminals,” CP at 2043) with the trial court’s legal conclusion (which we must review on appeal) “that failure to provide constitutionally adequate care and treatment did not render the statute punitive as applied.” Majority at 349. To extend this purported rule of law, a civil committee confined to a dungeon, denied treatment, and flogged on a daily basis would not be entitled to release because the “deficiencies are subject to remediation” (Majority at 349 (quoting trial court, CP at 2048)), even though the “deficiencies” have not in fact been remediated.
In Young the United States Court of Appeals rejected this argument, holding Young was entitled to a factual hearing on his habeas corpus petition concluding his allegations of punitive confinement as a matter of law entitled him to release if factually proved:
We hold that Young alleged facts which, if proved, would establish the punitive nature of his confinement and would entitle him to relief.
Young, 176 F.3d at 1200, amended (Sept. 16, 1999).
While the majority in the companion case of In re Detention of Turay, 139 Wn.2d 379, admittedly cannot distinguish *368but still refuses to follow Young (“This court is, of course, not bound by that decision and . . . we decline to follow it.”), the majority here attempts to distinguish it. Yet, at the same time this majority acknowledges Young is entitled to relief on remand if he proves “his conditions of confinement are so punitive as to constitute punishment.” Majority at 349 n.2. Campbell is entitled to that relief now based on the findings of the trial court in this record.
Although the majority does not remand for further factual findings (unlike Young), I agree remand is unnecessary here because the trial court adopted numerous findings, not challenged on appeal, detailing the absence of treatment in an extremely punitive environment. Although the majority opinion unaccountably says nothing about the specific conditions of confinement, it concludes Campbell has “failed to prove the conditions of confinement are punitive.” Majority at 349. I will therefore assist by referencing the record and findings of the trial court.
The SCC is operated by the Department of Social and Health Services, but is housed entirely within a Department of Corrections (DOC) prison facility. CP at 1949. Because the SCC shares a physical facility with the DOC, the SCC is dependent on DOC for many services including shared use of the law library and visiting rooms, and medical and meal services. CP at 1949. The SCC “residents” are frequently and unknowingly monitored by electronic surveillance equipment. CP at 1949-50. Space limitations and some elements of facility design render the SCC more restrictive than DOC facilities. CP at 1950.
The DOC provides the SCC with backup emergency security. CP at 1950. SCC has called DOC staff for a “show of force” against residents on at least six occasions. CP at 1950. DOC perimeter guards are permitted to shoot SCC residents who attempt to escape from the facility. CP at 1950. The SCC “resident security classification system” purports to measure an inmate’s security risk, but includes nonrelevant factors such as an inmate’s commitment to the treatment program. CP at 1950-51.
*369All SCC residents are subjected to stringent security-measures. For example, residents are observed when they use the rest room, often by female staff. CP at 1951-52. Residents are strip-searched any time they leave and return to the SCC facility, even though they are under constant armed surveillance when traveling. CP at 1952. Residents are subjected to “pat down” searches after every visit and when they leave the unit for another part of the building. CP at 1952. All residents’ rooms have been subjected to arbitrary searches. CP at 1952. Further, residents are shackled and handcuffed at all times when transported, despite the accompaniment of an armed guard. CP at 1952.
Residents undergoing “treatment” as well as those choosing not to participate in treatment are housed together, despite recommendatipns that segregation would further treatment goals. CP at 1951. SCC forensic therapists have conducted strip searches of Campbell and other residents, even though this practice is incompatible with the program treatment goals as it harms the therapeutic relationship. CP at 1952.
The only group therapy offered at SCC occurred for less than one year, met for a maximum of three hours each week, involved five residents at most, and was cancelled due to the inability of the leader to manage the group. CP at 1956. A resident is not permitted into group therapy until a comprehensive assessment has been completed and the resident has admitted the commission of crimes. CP at 1956.
There are no state-certified sexual offender treatment providers on the SCC staff. CP at 1957. The staff members most directly involved in the treatment and management of residents are employees classified as forensic therapists. CP at 1957. Although the forensic therapists have primary responsibility for providing individual therapy to residents, none are psychologists, psychiatrists, psychiatric social workers, or nurses. CP at 1958. No treatment manual exists. CP at 1958.
The SCC has not established formal grievance procedures *370for the inmates. CP at 1953. No transition, work release, or aftercare program has been designed or implemented at the SCC. CP 1953-54. All treatment experts agree well-defined conditions of eligibility for release from detention and an aftercare program are a fundamental and necessary component to any treatment program for this population. CP at 1954.
The SCC staff have behaved inappropriately. For example, staff have verbally abused residents and made derisive comments about residents’ status or race. CP at 1960. Staff have laughed during strip searches of residents. CP at 1960. And staff have requested residents to harm other staff members. CP at 1960. Pornography has been provided to residents by staff. CP at 1960.
Ample evidence supports the trial court’s finding that the State has failed to provide Campbell with any meaningful treatment and the conditions of his confinement are nothing short of punitive.
Although the majority admits these and other conditions of confinement, and lack of treatment, are unconstitutional (Majority at 350), it fails to articulate the necessary conclusion that the confinement itself is thereby rendered unconstitutional. This is necessarily the proper legal conclusion because punitive conditions of confinement are inherently inconsistent with the civil nature of the statute. Indeed a previous majority of this court upheld the statute against claims of facial invalidity premised upon the ex post facto and double jeopardy clauses of the United States Constitution only because that majority held the statute was civil and nonpunitive on its face.
But if Campbell’s incarceration is unconstitutional, he is entitled to an appropriate remedy, not judicial indifference. Although the majority reasons “the proper relief under the circumstances is to remedy any constitutional defects in the administration of the SCC,” Majority at 350, the immediate task is to remove Campbell from the unconstitutional conditions, which means removing him from the SCC. Since this court previously held an individual confined under the *371“Sexually Violent Predator” statute may not challenge unconstitutional conditions of confinement prior to trial, In re Detention of McClatchey, 133 Wn.2d 1, 5, 940 P.2d 646 (1997), the practical effect of the majority’s decision today is to subject individuals like Campbell to unconstitutional punishment without meaningful remedy — either prior to or even after unconstitutional confinement. Such jurisprudence is unrecognizable under traditional habeas practice.
It is clear . . . that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.
Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). The Supreme Court has traced the history of the writ:
[0]ver the years, the writ of habeas corpus evolved as a remedy available to effect discharge from any confinement contrary to the Constitution or fundamental law ....
Id. at 485, and has described the writ as “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action,” Harris v. Nelson, 394 U.S. 286, 290-91, 89 S. Ct. 1082, 22 L. Ed. 2d 281 (1969), emphasizing “there is no higher duty than to maintain [habeas corpus] unimpaired.” Bowen v. Johnston, 306 U.S. 19, 26, 59 S. Ct. 442, 83 L. Ed. 455 (1939).
The instant proceeding, which attacks the very constitutionality of this confinement, must be distinguished from federal civil rights actions brought to challenge the conditions of confinement absent a claimed right to release. Cf. Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979) (petitioner did not challenge the legality of his imprisonment or allege he was entitled to release, but rather complained about the failure of prison authorities to provide a program of conjugal visits, a prison slaughterhouse that rendered tainted meat for prisoner consumption, and an inadequate law library).
*372But where a challenge to conditions of incarceration is derived from the entitlement to incarceration, it is properly asserted as a habeas corpus proceeding, not one under the federal civil rights act, 42 U.S.C. § 1983. Martin A. Schwartz, The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, 37 DePaul L. Rev. 85, 148 (1988).
Although the United States Supreme Court has left open the question whether habeas corpus may be used to review the constitutionality of conditions of confinement, id. at 150 n.393 (citing Bell v. Wolfish, 441 U.S. at 526 n.6), where the prisoner’s incarceration is unconstitutional the remedy under habeas corpus is release or at least “release from the unconstitutional custody ‘subject to imposition of the potential lawful custody.’ ” Schwartz, supra, at 150 (quoting Developments in the Law — Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1082 (1970)).
If there were a second special commitment center functioning in a constitutionally appropriate fashion to accomplish the civil goals of the statute, the state might have a strong argument that the court should transfer Campbell to that facility in lieu of release; however, in our state there is only one special commitment center and, as this record amply demonstrates and the majority admits, the conditions therein are unconstitutionally punitive.
Therefore the state has forced this court to choose between upholding the rights of this prisoner who is unconstitutionally confined, on the one hand, or continuing the unconstitutional confinement on the other. The majority’s choice flies in the face of the United States Court of Appeals opinion in Young, 176 F.3d 1196, amended (Sept. 16, 1999), which pointedly states:
Nor did Young’s factual challenge regarding the conditions of confinement receive a full and fair hearing by the Washington Supreme Court.
Id. at 1201. I would add, nor has Campbell’s.
*373II
Admissibility of Wolfe’s Testimony.
Wolfe’s expert testimony was not based on accepted scientific principles, was not helpful to the trier of fact, and therefore should not have been admitted into evidence.
Although I would order release independent of evidentiary rulings for the reasons stated above, the majority’s treatment of the evidence issue deserves a dissent in its own right.
In the dark heart of the sex predator statute is the legislative denial of free will and individual responsibility. This is true because a “sexually violent predator” is legislatively defined as one “who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence . . . .” RCW 71.09.020(1). Necessarily one who simply commits a violent sexual act through volitional choice is outside the statute. Such an individual is what the criminal law is made for. But in theory the person who does this because his “mental abnormality” or “personality disorder” “makes” him do it is not a person acting by his free will and, consequently, not one who can be held accountable for his choices.
Therefore evidence is necessary to distinguish between those who volitionally act of their free will and those who don’t. On its face future acts of violence based on free choice are not only outside the statute but would seem unpredictable in principle. On the other hand one would expect those acting out their nonvolitional destiny by reason of a “mental abnormality” or “personality disorder” which causes violent sexual conduct would show themselves through the application of diagnostic criteria proved in the scientific arena to be reliable and accurate through repetition and replication. Reciprocally, when such predictions are not based on proven methodology they lack the competence justifying consideration by the trier of fact because *374they provide no factual assistance, only prejudice, speculation, and/or what some may call “junk science.”
The necessity for testimony based upon good science is only heightened by the statistical observation that 88 percent of sex offenders will not reoffend if released,6 although even if the ratio were reversed we would still require proof beyond a reasonable doubt that the specific individual at bar met the criteria. If expert testimony does not reliably and validly distinguish the individual within the statutory class subject to commitment from he who is not, a grave injustice has occurred because we have deprived an individual his liberty without sufficient factual basis.
Thus a probing inquiry into the scientific basis of such testimony as a threshold to its admission into evidence is not only entirely appropriate but absolutely necessary.
According to the majority, Campbell challenges the admissibility of Mr. Wolfe’s testimony because “he generally questions the ability for anyone to ‘predict dangerousness.’ ” Majority at 357. To this, the majority counters, “[b]oth this court in Young, 122 Wn.2d at 56-58, and the United States Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 896-903, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983), have specifically rejected this kind of argument.” Majority at 357 (footnote omitted). But the majority misconstrues Campbell’s argument and fails to acknowledge ample authority supporting his position.
Campbell challenges the admissibility of Wolfe’s testimony on the basis of Frye v. United States, 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923) and ER 702. Campbell does not “generally” question the ability to predict dangerousness but specifically challenges the unscientific method employed by Wolfe to make his prediction in this *375case.7 Campbell argues “[w]hile Wolfe continued to claim an actuarial basis for his conclusion, the evidence he presented was purely clinical and therefore inherently unreliable.” Reply Br. of Appellant at 24. Notwithstanding overwhelming expert testimony that questioned the validity of predicting dangerousness using either method, the trial court admitted Wolfe’s opinion testimony absent a generally accepted scientific basis.
“The rationale of the Frye standard, which requires general acceptance in the relevant scientific community, is that expert testimony should be presented to the trier of fact only when the scientific community has accepted the reliability of the underlying principles.” State v. Copeland, 130 Wn.2d 244, 255, 922 P.2d 1304 (1996) (citation omitted). While it is not the function of the court itself to assess the reliability of the evidence, “ ‘[i]f there is a significant dispute between qualified experts as to the validity of scientific evidence, it may not be admitted.’ ” Id. at 255 (quoting State v. Cauthron, 120 Wn.2d 879, 887, 846 P.2d 502 (1993)).
Thus, the question is whether the psychiatric community has accepted the reliability of either the clinical or actuarial method to predict dangerousness. To answer, we must “undertake a searching review which may extend beyond the record and involve consideration of scientific literature *376as well as secondary legal authority.” Copeland, 130 Wn.2d at 255-56 (citations omitted).
When conducting risk assessments, mental health professionals employ two distinct methods. With the clinical approach, “expert evaluators consider a wide range of empirically validated risk factors and then form an overall opinion concerning the offender’s recidivism risk.” R. Karl Hanson, What Do We Know About Sex Offender Risk Assessment?, 4 Psychol., Pub. Pol’y, & L. 50, 52 (1998). In contrast, “the actuarial approach considers a small number of variables but applies explicit rules for translating the rankings on the individual variables into an overall risk rating.” Id. at 62.
There is, however, widespread agreement among mental health experts that clinical predictions of dangerousness are highly unreliable.
In literally hundreds of comparisons over many domains including the prediction of recidivism, clinical judgment has essentially never been found to be superior to actuarial methods, whereas the converse has most often been demonstrated (Grove & Meehl, 1996; Mossman, 1994). Some studies have shown better-than-chance (i.e., they outperformed blind guesswork) performance by clinicians, but many have not. No studies have demonstrated that clinicians’ judgments are more accurate than those of laypersons, and there is at least one study showing that they are not (Quinsey & Ambtman, 1979).
Grant T. Harris et al., Appraisal and Management of Risk in Sexual Aggressors: Implications for Criminal Justice Policy, 4 Psychol., Pub. Pol’y, & L. 73, 88 (1998). Nor, for that matter, has the reliability and validity of the actuarial method been established either:
Although significant advances have been made in the ability to predict sex offender recidivism, the application of these schemes to individuals convicted under sexual predator laws is still problematic. Even though the actuarial prediction scheme significantly improved prediction over chance, there are still a number of false positives and negatives.
Judith V. Becker & William D. Murphy, What We Know and Do Not Know About Assessing and Treating Sex Offenders, *3774 Psychol., Pub. Pol’y, & L. 116, 126 (1998); see also Eric S. Janus & Paul E. Meehl, Assessing the Legal Standard for Predictions of Dangerousness in Sex Offender Commitment Proceedings, 3 Psychol., Pub. Pol’y, & L. 33 (1997); Gary Gleb, Washington’s Sexually Violent Predator Law: The Need to Bar Unreliable Psychiatric Predictions of Dangerousness from Civil Commitment Proceedings, 39 UCLA L. Rev. 213, 227 (1991). Even those who cautiously endorse the actuarial method acknowledge the theory has not gained general acceptance. See R. Karl Hanson, supra, 4 Psychol., Pub. Pol’y, & L. at 52; Grant T. Harris et al., supra, 4 Psychol., Pub. Pol’y, & L. at 90-91; Eric S. Janus & Paul E. Meehl, supra, 3 Psychol., Pub. Pol’y, & L. at 60-61; Gleb, supra, 39 UCLA L. Rev. at 246-47. Since neither the clinical nor the actuarial method to predict the likelihood of reoffense has gained general acceptance in the psychiatric community, the Frye standard has not been met. To hold otherwise would be to allow preference for result to dictate the boundaries of science.
The majority erroneously contends Young and Barefoot v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983), have conclusively decided this issue adverse to the prisoner. Not so. In Young this court cited one study in support of the proposition that sexual recidivism may be accurately predicted; however, it did not endorse the quite different proposition that such predictions are generally accepted as reliable and valid. As Frye requires “general acceptance” before a scientific theory may be presented to the jury, Young’s analysis does not establish the requisite general acceptance. Barefoot is equally inapplicable. There the appellant argued his Eighth and Fourteenth Amendment rights were violated by the State’s use of psychiatric testimony at the sentencing phase of his capital case. When Justice Blackmun argued in his dissent “scientific proof’ was lacking to establish future dangerousness, the Court responded “[t]he federal cases cited [by the] dissent as rejecting ‘scientific proof’ . . . are not constitutional decisions, but decisions of federal evidence law.” Barefoot v. Estelle, 463 U.S. at 899 n.6. But the issue here is evidentiary. *378Neither Young nor Barefoot addressed the evidence issue raised by Campbell, nor has the majority.
Wolfe’s testimony was equally inadmissible under ER 702 because it was not helpful to the trier of fact. ER 702 allows testimony by an expert only if it “will assist the trier of fact to understand the evidence.” This includes an evaluation of the admissibility of a particular expert’s opinion based upon general acceptance, if any, of the principles from which he reasons.
If there is a precise problem identified by the defense which would render the test unreliable, then the testimony might not meet the requirements of ER 702 because it would not be helpful to the trier of fact.
State v. Cauthron, 120 Wn.2d 879, 890, 846 P.2d 502 (1993).
State v. Greene, 139 Wn.2d 64, 984 P.2d 1024 (1999) is also helpful. There we held expert testimony the defendant suffered from disassociative identity disorder (DID) would not be helpful to the trier of fact and refused to admit it notwithstanding the admitted expertise of the witness. Although we found DID is generally accepted within the scientific community as a diagnosable condition, this “does not necessarily mean, however, that such evidence is admissible in any particular case.” Greene, 139 Wn.2d at 73. Rather, scientific evidence is inadmissible under ER 702 “unless it is helpful to the trier of fact under the particular facts of the specific case in which the evidence is sought to be admitted.” Greene, 139 Wn.2d at 73 (citation omitted) (emphasis added). An examination of the particular facts in Greene revealed the experts were unable — using any method — to reliably evaluate the sanity of a defendant suffering from DID.
According to the testimony and argument in this case, however, none of the various approaches have been accepted as producing results capable of reliably helping to resolve questions regarding sanity and/or mental capacity in a legal sense.
Id. at 77.
*379Here the psychiatric community has not generally accepted either the clinical or actuarial method to identify past sexual offenders who will reoffend in the future. As Wolfe claimed an actuarial basis for conclusions actually derived from a clinical approach, the trial court erred in admitting his testimony as neither method has been generally accepted by the psychiatric community to produce reliable results. This testimony was not helpful to the trier of fact and was therefore inadmissible under ER 702 and incompetent under Frye.
Ill
Conclusion
It was clear to the United States Court of Appeals for the Ninth Circuit “that the Washington state courts did not afford Young a full and fair hearing concerning the conditions of confinement in the Special Commitment Center.” Young, 176 F.3d at 1201, amended (Sept. 16, 1999). So too it must he equally clear that the majority in this proceed- • ing continues that unfortunate result-oriented trend. The Great Writ of antiquity8 mandates the burden of unlawful restraint be lifted from this man’s shoulders. I dissent.
Motions for reconsideration denied December 14, 1999.
Since one can be “sentenced” only under a criminal statute, and this court upheld the statute against facial challenge in In re Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993) only by concluding it is civil, not criminal, id. at 23, use of the term “sentence” by the majority may be the judicial equivalent of a “Freudian slip” acknowledging the true nature of the proceedings.
Eric S. Janus & Paul E. Meehl, Assessing the Legal Standard for Predictions of Dangerousness in Sex Offender Commitment Proceedings, 3 Psychol., Pub. Pol’y, & L. 33, 53 (1997) (“In Washington State, the measured sex-offense rearrest rate for the same group was 12%, with a follow-up period of 7 years.” (citing Washington State Institute foe Public Policy, Findings from the Community Protection Research Project: A Chartbook 25 (5th ed. 1996))).
Dicta in In re Harris, 98 Wn.2d 276, 280, 654 P.2d 109 (1982), suggests that predictions of future dangerousness do not necessarily violate constitutional due process although “[t]here is no question the prediction of dangerousness has its attendant problems.” Id. at 281, In re Young, 122 Wn.2d at 56. Although in Harris we stated, “[W]e are not prepared to abandon the possibility of conforming the law of involuntary civil commitment to the requirements of the constitution,” Harris, 98 Wn.2d at 281 (emphasis added), that is a far cry from stating such evidence, particularly when based upon methodology not generally accepted, is admissible under ER 702.
In In re Young, 122 Wn.2d at 55, a majority of the court, citing Hams, rejected the claim “that the experts had no basis for their testimony that any particular mental abnormality or personality disorder exists which makes a person likely to rape, or . . . reoffend” notwithstanding the considered contrary opinion of the Washington State Psychiatric Association. Hopefully this statement is not a blanket invitation to admit all such testimony no matter how incompetent, but only a sentiment that in the context of a facial challenge we cannot presume all such testimony would necessarily be inadmissible no matter what its basis.
For general discussion see In re Personal Restraint of Well, 133 Wn.2d 433, 451-52, 946 P.2d 750 (1997) (Sanders, J., dissenting).