(dissenting) — Under the guise of a civil commitment facially justified to accomplish remedial treatment, not punishment, Richard Turay challenges not only the procedure by which he was imprisoned but the abject refusal of the trial court to substantively consider the actual conditions of his confinement. I will highlight my critical disagreements with the majority under appropriate headings, attempting to follow the majority’s order of presentation.
I
Denial of Motion to Vacate is an Appealable Order
At the threshold, the majority diminishes the prisoner’s access to whatever justice may be provided through appellate review by claiming this prisoner’s appeal from the order of May 9, 1996 denying his motion to vacate the judgment of commitment cannot be pursued as a matter of right, but only by discretionary review. The order sought to be reviewed denied Turay’s motion to. vacate this judgment of commitment based upon proof of the punitive conditions, and lack of treatment, associated with the prisoner’s actual confinement. Clerk’s Papers (CP) at 949 (“to vacate the RCW 71.09 commitment of Mr. Turay.”). The trial court excluded this evidence during the trial in chief causing Turay to subsequently file a motion to vacate on this ground. Pursuant to RAP 2.2(a)(10), “An order granting or denying a motion to vacate a judgment” is appealable as a matter of right; therefore the order denying Turay’s motion to vacate is also appealable of right.
II
Constitutional Right to Represent Oneself
The Sixth and Fourteenth Amendments of the United States Constitution guarantee the right to counsel in state proceedings where liberty is at stake. Tetro v. Tetro, 86 Wn.2d 252, 544 P.2d 17 (1975). This right to counsel includes the right to represent oneself in the alternative to utilizing a retained or appointed counsel. Faretta v. Califor*426nia, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Although we might question Turay’s choice to represent himself, Turay does have the absolute constitutional right to waive the assistance of retained or appointed counsel:
The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant — not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists.
Id. at 820 (footnote omitted). That is not to say there is no required form in which the right to self-representation must be asserted. Rather, the request “must be knowing and intelligent, timely and not for the purpose of delay, and unequivocal.” Adams v. Carroll, 875 F.2d 1441, 1442 (9th Cir. 1989) (citations omitted).34
Essentially the majority finds no error on review of the trial court’s denial of Turay’s request to self-representation, asserting this request was “equivocal” in the sense that it was posed in the alternative to representation by counsel of his choice. (“He prefaced this comment [“ ‘to represent myself with standby counsel’ ”], however, with several requests to have Mark Mestel, an attorney who had represented him at his first commitment trial, represent him again.” Majority at 396.).
When Turay learned his attorney of choice was unavail*427able, he unequivocally requested the court to permit him to proceed pro se: “I don’t even know if I got a decision from you yet whether it’s possible to represent myself.” Videotape Recorded Proceedings (VRP) (Nov. 16, 1993) at 11. Yet the trial court refused to consider Turay’s request: “All I want you to do is work with Ms. Shaw. We don’t have time right now, given the lateness of the hour, to go into all of this. . . . Work with her. I think everything would go faster, it would go smoother.” Id.
Notwithstanding, Turay persisted and again pressured the court to decide his motion for self-representation:
You still haven’t ruled yet on whether I can — and I had the motion here and you said last week you didn’t want to hear it, and I brought it back with me again. This motion is to represent myself with a standby counsel.
Id. at 12-13. While Turay clearly wanted Mestel appointed, equally clear was his desire to represent himself in the event the court denied his motion for substitute counsel.
A conditional request is not an equivocal one. Adams is directly on point. In Adams the Ninth Circuit examined whether “a request to proceed without counsel [is] unequivocal where the defendant consistently wishes to invoke the right only as an alternative to the appointment of a particular defense attorney.” Adams, 875 F.2d at 1442. The court held an alternative request is not thereby rendered an equivocal one.
Throughout the period before trial, Adams repeatedly indicated his desire to represent himself if the only alternative was the appointment of Carroll. While his requests no doubt were conditional, they were not equivocal.
Id. at 1445.35
Although the majority asserts Turay was “ambivalent *428about whether he would accept the appointment of substitute counsel” (Majority at 397), the record reflects Turay consistently resisted the court’s efforts to appoint an attorney other than Mestel.36 In fact, Turay clearly articulated his reasons for declining Ms. Shaw’s representation: “[S]he’s probably a real smart person, you know, but there are several people out at the Special Commitment Center that are doing a life sentence because the Public Defender’s Office has represented 'em.” VRP (Nov. 16, 1993) at 7.
Even assuming Turay agreed to cooperate with Ms. Shaw, this does not render equivocal his persistent requests to proceed pro se. “ ‘After a clear denial of the request [to proceed pro se], a defendant need not make fruitless motions or forego cooperation with defense counsel in order to preserve the issue on appeal.’ ” United States v. Arlt, 41 F.3d 516, 523 (9th Cir. 1994) (emphasis omitted) (quoting Brown v. Wainwright, 665 F.2d 607, 612 (5th Cir. 1982)).
As the trial court unquestionably denied Turay’s request to represent himself,37 it should be equally clear Turay made the request. Turay’s attempt to make the best of his remaining options does not make his prior request “equivocal.”
The Supreme Court recently reaffirmed denial of the right to self-representation is not subject to a harmless error analysis but is “subject to automatic reversal.” Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999). Turay’s commitment must therefore be reversed on this ground if no other.
*429III
Penalizing Turay for Pursuing his Legal Remedies
The trial court granted the State’s motion in limine to exclude testimony regarding the actual conditions of Turay’s confinement, and also denied Turay the right to rebut the State’s expert witness, Dr. Irwin Dreiblatt, who testified to the effect Turay was suffering from a mental disorder justifying commitment evidenced by, amongst other things, “threats to sue.” Verbatim Report of Proceedings (RP) (Sept. 28, 1994) at 110. These threats to sue in part led Dr. Dreiblatt to testify, “he has an exaggerated sense of self-importance, that he is a very important person, he can do all that.” Id.
In a sense I agree with Dr. Dreiblatt. In a free society every individual including Turay is “a very important person,” at least one indication of that importance being the unfettered right to access the courts to remedy one’s legal grievances.
“[Ejvery prisoner has a constitutional right of access to the courts to present any complaints he might have concerning his confinement. He cannot be disciplined in any manner for making a reasonable attempt to exercise that right. Access to the courts is a fundamental precept of our system of government. No citizen, regardless of his transgressions, is ever to be legally consigned to the total and unreviewed power of any single branch of government.”
Inmates of Neb. Penal & Correctional Complex v. Greenholtz, 436 F. Supp. 432, 436 (D. Neb. 1976) (quoting Andrade v. Hauck, 452 F.2d 1071, 1072 (5th Cir. 1971)), aff’d, 567 F.2d 1381 (8th Cir. 1977). See also Burns v. Swenson, 430 F.2d 771 (8th Cir. 1970).
But it is of supreme irony, in light of Dr. Dreiblatt’s testimony, that Turay’s federal lawsuit against the commitment center, and certain individuals associated with the center, was successful. This evidence was excluded from the trial even though it would have demonstrated not only Turay’s rational decision to seek legal redress but also the *430merit of his claim. Notwithstanding, the trial judge withheld this part of the story from the jury, allowing Dr. Dreiblatt to get away with characterizing this man as a sex predator, at least in part, because he attempted to legally defend himself against what all seem to concede are unconstitutional conditions of confinement.38 The exclusion of Turay’s rebuttal is especially aggravated in view of Dr. Dreiblatt’s admission that threats to sue with a meritorious basis are not indicative of a narcissistic personality. RP (Sept. 29, 1994) at 72 (“I wouldn’t consider that narcissistic.”).
The majority contends, “Dr. Dreiblatt determined that Turay’s threats fell under an umbrella of a larger group of threats that Turay consistently made” (Majority at 406), and Dr. Dreiblatt’s diagnosis of Turay was not even “influenced” by his threats to sue. But in fact it was Dr. Dreiblatt’s testimony that he considered Turay’s threats to sue as one factor in “the group of things that were going on” (RP (Sept. 29,1994) at 71), and therefore his testimony must have been “influenced” by these threats.
The trial court erred not because it allowed Dr. Dreiblatt to testify without objection but because it prevented any rebuttal from Turay. This denied Turay the right to mount a defense. “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) (citations omitted). The right to present witnesses is particularly important when a witness would rebut or explain evidence introduced by the government from which the jury might infer an element of the offense. See, e.g., United States v. Whitman, 771 F.2d 1348, 1351 (9th Cir. 1985) (error to prevent defendant from rebutting evidence introduced by the government from which jury *431might infer motive); United States v. Armstrong, 621 F.2d 951, 953 (9th Cir. 1980) (error to exclude testimony that another man fit the description of the robber and used “bait” money to buy car).
The majority itself recognizes “[t]he introduction of testimony regarding an alleged SVP’s [sexually violent predator] mental abnormality and/or personality disorder is not only appropriate, but it constitutes the very purpose of an SVP commitment proceeding.” Majority at 406. But the majority denies Turay the right to discredit Dr. Dreiblatt’s testimony, or even challenge factual assumptions which underlie it, with evidence of the actual conditions of confinement about which Turay justly complained. Exclusion of Turay’s proposed testimony therefore left unchallenged, and immunized, the inference of a “mental abnormality” based on Turay’s “narcissistic” promises to sue.
IV
Beyond a Reasonable Doubt Means Beyond a Reasonable Doubt
The court instructed the jury:
To find that the respondent Richard Turay is a sexually violent predator, the State must prove each of the following elements beyond a reasonable doubt. One, that the respondent has been convicted of a crime of sexual violence, specifically rape in the second degree; two, that the respondent suffers from a mental abnormality; and, three, that such mental abnormality makes the respondent likely to engage in predatory acts of sexual violence.
If after weighing all the evidence you have a reasonable doubt as to any one or more of these elements, then it will be your duty to return a verdict that the respondent is not a sexually violent predator.
RP (Oct. 7, 1994) at 15-16 (emphasis added).
Turay persuasively argues this jury instruction, when read as a whole, lowers the burden of proof to a mere preponderance standard:
*432[Ajlthough the court’s instructions to the jury recited the beyond a reasonable doubt standard of proof, they did not require the jury to find that Richard was a sexually violent predator by that strict standard of proof.
A 100 percent certainty that there is a 51 percent chance that someone will commit predatory sexual acts in the future still demands only a 51 percent certainty.
Appellant’s Opening Br. at 81-82.39 We upheld this statute only against facial constitutional attack by holding “[t]he burden is on the State to prove, beyond a reasonable doubt, that the detainee is a sexually violent predator. RCW 71.09.060(1).”40 In re Personal Restraint of Young, 122 Wn.2d 1, 13, 857 P.2d 989 (1993). But here the prosecutor emphasized this instruction because it included the word “likely” to argue that burden had been reduced to a mere preponderance by rhetorically asking in closing argument: “[A]re you convinced that more likely than not at some future point in the future he will attempt to commit or commit a predatory act of sexual violence?” RP (Oct. 7, 1994) at 117-18; and stating, “If you believe respondent is likely to commit an act of sexual violence, that’s all that’s meant.” Id. at 37.
Due process guarantees an accused be protected “against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (emphasis added). Even under the language of this statute the prospect of reoffense is an essential fact to be proved “beyond a reasonable doubt.” RCW 71.09.060(1). If we endorse a lower burden of proof we circumvent the statute, Young, and Winship, thereby permitting the state to indefinitely confine an individual on *433a “more likely than not” flip of the coin rather than strictly limiting commitment to only those who will otherwise reoffend “beyond a reasonable doubt.”41 As held in Young and Winship, when an accused is entitled to greater protection than that provided by the simple preponderance standard, an instruction which allows commitment on a mere preponderance is serious and reversible error. Winship, 397 U.S. at 363; see also Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (holding constitutionally deficient reasonable doubt instruction required automatic reversal), cert. denied, 523 U.S. 1061, 118 S. Ct. 1390, 140 L. Ed. 2d 649 (1998).
The majority summarily dismisses Turay’s argument that the jury instructions erroneously reduced the burden of proof from “beyond a reasonable doubt” to a “preponderance” standard “[bjecause we have previously considered, and rejected, the argument that Turay makes, we hold that the trial court’s instructions did not reduce the State’s burden to a preponderance.” Majority at 408 (citing Young, 122 Wn.2d at 32 n.9). Not so.
Young did not reject this argument, in fact it expressly required proof beyond a reasonable doubt to honor the statutory requirement set forth in RCW 71.09.060(1) and to save the statute from constitutional infirmity. The language relied upon by this majority was written by Young’s majority in a footnote to respond to the dissent’s contention the sex predator act facially violates substantive due process. That footnote emphasized the beyond-a-reasonable-doubt standard as a rebuttal to claims of facial invalidity:
The dissent seriously underplays the quantum of proof neces*434sary to meet the dangerousness prong of the sex predator statute. The State must do far more than merely reprove a past criminal act, or present testimony from someone who thinks that individual is still dangerous. See dissent, at 62-65. Instead, the statute requires proof beyond a reasonable doubt that the person has been convicted or charged with a crime of sexual violence, and 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).
Young, 122 Wn.2d at 32 n.9. Young thus expressly adopted the “beyond a reasonable doubt” standard; it certainly did not endorse an instruction phrased to defeat that standard.
And there is another reason why this error is so prejudicial: If an individual is indeed suffering from a mental condition that “makes” him likely to commit future acts of predatory violence, RCW 71.09.020(1), the existence of that volitional impairment must be proved beyond a reasonable doubt because this statute envisions future acts of sexual violence are a necessary and defining characteristic of the mental abnormality which makes commitment appropriate. If we relax this standard our net catches not only those who will not necessarily reoffend as a result of an alleged mental condition but also dilutes the statutory definition of the necessary mental disorder.
A proper burden of proof instruction under this statute therefore also serves to focus and define the condition at issue to the exclusion of speculation based upon prior conduct indicative of simple volitional propensity. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995) (“[Ejvidence of other crimes, wrongs, or acts is presumptively inadmissible to prove character and show action in conformity therewith. ER 404(b)”); State v. Holmes, 43 Wn. App. 397, 400, 717 P.2d 766 (1986) (“When the sole purpose of the other crimes evidence is to show . . . propensity . . . there is no room for ad hoc balancing. The evidence is then unequivocally inadmissible . . . .” (quoting McCormick on Evidence § 190, at 565 (Edward W Cleary ed., 3d ed. 1984))); State v. Irving, 24 Wn. App. 370, 375, 601 P.2d 954 (1979) (propen*435sity evidence obscures the peg of relevancy “by the dirty linen hung upon it.”).
The necessity in a sex predator proceeding to distinguish evidence of a mental defect that “makes one reoffend” from simple propensity evidence that “one will probably reoffend in the future because he has offended in the past” is a distinction of critical importance in the case before us. Propensity evidence is not and cannot be evidence that one meets the statutory definition of “sexually violent predator” as one “who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” RCW 71.09.020(1) (emphasis added).
Even if it were reasonable to assume Turay might reoffend because he has offended before, the statutory standard is not satisfied unless the prospect of reoffense is specifically caused by “a mental abnormality or personality disorder . . . .” This requires proof not only that the disorder exists but that the disorder, in and of itself, causes one to reoffend in the same sense that a cold causes the sniffles. It is therefore facially insufficient to demonstrate only that one has a disorder and that one will reoffend absent further proof, beyond a reasonable doubt, that the first causes the second. But evidence of this causal link is absent from this record, and specifically absent from the testimony of the state’s expert. Dr. Dreiblatt testified that in his opinion Turay would reoffend not because the diagnosed disorder necessarily caused one to reoffend but because one who offended in the past is more likely to offend in the future, i.e., propensity:
If there is one finding that overshadows all others in the area of prediction it is that the probability of future crimes increases with each prior criminal act. . . . [I]f a person is arrested four times, the probability that it will happen a fifth time is eighty percent. If a person is arrested ten times, the probability of an 11th arrest is ninety percent.
RP (Sept. 29, 1994) at 98. Even if this is true it does not *436prove the statutory element, that the mental disorder “makes” the individual reoffend. Thus, the instruction as given obscures the statutory requirement that the disorder cause one to reoffend as distinguished from proof of the prospect of reoffense due to simple propensity.
This instruction could be easily cured by simply reforming the last phrase to delete “likely to,” thus making it read, “that such mental abnormality makes the respondent engage in predatory acts of sexual violence.” Such would preserve the reasonable doubt standard thereby accurately restating the statutory elements in the context of the constitutional burden of proof. An appropriate instruction would then read:
To find that the respondent Richard Turay is a sexually violent predator, the State must prove each of the following elements beyond a reasonable doubt. One, that the respondent has been convicted of a crime of sexual violence, specifically rape in the second degree; two, that the respondent suffers from a mental abnormality; and, three, that such mental abnormality makes the respondent engage in predatory acts, of sexual violence.
V
Release is the Remedy for Unconstitutional Confinement
Turay contends release is the remedy to confinement under unconstitutional conditions. I agree but the majority does not. The majority follows closely the analysis set forth in the companion case of In re Detention of Campbell, 139 Wn.2d 341, 986 P.2d 771 (1999), which it cites for authority, Majority at 422, just as Campbell cites Turay v. Weston, No. C91-664WD (W.D. Wash. 1994), for its authority. In re Detention of Campbell, 139 Wn.2d at 348-49. However this majority at least admits the holding in Young v. Weston, 176 F.3d 1196, amended by 192 F.3d 870 (9th Cir. 1999) (hereinafter “amended (Sept. 16, 1999)”) is contrary to its position, whereas the majority in Campbell inconsistently attempts to distinguish it.
Where the majority opinion here is similar to the major*437ity opinion in In re Detention of Campbell, I rely on my dissent in Campbell to adequately respond to the majority’s misbegotten claim that the Constitution of our country does not protect individuals from unconstitutional confinement. But I here additionally respond to this majority’s unique claim that an “as-applied” double jeopardy challenge must always fail as a matter of law.
The majority contends Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997) stands for the proposition that “a double jeopardy challenge to a statute must be made facially rather than by assessing the character of the actual sanctions imposed, i.e., as applied.” Majority at 419. The United States Court of Appeals in Young considered and then rejected this precise argument:
Relying on Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), Washington argues that the conditions of confinement are irrelevant to the court’s [double jeopardy] inquiry. We disagree. Whereas Hudson involved monetary penalties and disbarment, see id. at_, 118 S. Ct. at 493, this case involves confinement. In cases considering the question whether confinement is criminal or civil, the Supreme Court has always looked to the actual conditions of confinement. See, e.g. [Kansas v.] Hendricks, 521 U.S. [346,] at 361-67, 117 S.Ct. [2072,] at 2082-85 [, 138 L.Ed.2d 501 (1997)]; Allen v. Illinois, 478 U.S. 364, 373-74, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986); see also Bell v. Wolfish, 441 U.S. 520, 535-39 [, 99 S.Ct. 1861, 60 L.Ed. 2d 442] (197[9]).
Young, 176 F.3d at 1199 n.4, amended (Sept. 16, 1999).
Hudson questioned whether the previous imposition of civil monetary penalties raised a double jeopardy bar to subsequent criminal prosecution for illegal loans. It confined its analysis to answer the narrow issue “ ‘whether the imposition upon petitioners of monetary fines as in personam civil penalties by the Department of the Treasury, together with other sanctions, is “punishment” for purposes of the Double Jeopardy Clause.’ ” Hudson, 522 U.S. at 101-02 n.5. Hudson’s majority specifically distinguished the sanctions imposed there — civil fine — from the *438sanction here — imprisonment: “While petitioners have been prohibited from further participating in the banking industry, this is ‘certainly nothing approaching the “infamous punishment” of imprisonment.’ ” Id. at 104 (quoting Flemming v. Nestor, 363 U.S. 603, 617, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960)). That is the key distinction which our majority fails to credit.
While recognizing that “at least initially” the criminal versus the civil nature of the original sanction is a matter of statutory construction, 522 U.S. at 99, the Supreme Court, unlike the majority here, also recognizes that even if the initial sanction resulted from a statute facially civil in nature, that does not end the inquiry but rather requires an answer to the further question “ ‘whether the statutory scheme was so punitive either in purpose or effect, ’ ... as to ‘transfor[m] what was clearly intended as a civil remedy into a criminal penalty,’ ” 522 U.S. at 99 (alteration in original) (emphasis added) (citations omitted). Answering that latter question the Supreme Court employed the “useful guideposts” of the analysis set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963) including:
(1) “[w]hether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter”; (4) “whether its operation will promote the traditional aims of punishment — retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.”
Hudson, 522 U.S. at 99-100 (citing Kennedy, 372 U.S. at 168-69).
Although the Supreme Court was not persuaded the monetary penalty at issue in Hudson was a criminal sanction in actual effect, the Hudson analysis, which relied upon the Mendoza factors, specifically distinguished punishment which “involve[s] an ‘affirmative disability or *439restraint,’ as that term is normally understood,” Hudson, 522 U.S. at 104 (quoting Flemming, 363 U.S. at 617), from monetary assessments. The distinction between a monetary assessment on the one hand and punitive incarceration on the other was fundamental to the Supreme Court’s analysis in Hudson, as it was equally fundamental to the United States Court of Appeals’ analysis in Young. Yet this distinction is conspicuous by its absence from the majority opinion here. By analogy this distinction between superficial form and substantive effect might be illustrated by the personal injury victim whose ambulance is misdirected from the hospital to the maximum security prison where he is not only denied treatment but indefinitely confined under the most punitive of prison regimes. In such a situation the court must look to the actual conditions of confinement, not the hypothetical destination of the ambulance.
The availability of an as-applied challenge in like situations of confinement is well understood. Although the Supreme Court held in Kansas v. Hendricks, 521 U.S. 346, 371, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) that Kansas’s involuntary commitment statute for sexually violent predators did not violate the due process, ex post facto, and double jeopardy clauses of the United States Constitution, the Court expressly recognized the possibility that a civil commitment statute such as RCW 71.09 could be applied in a punitive fashion and thus violate the double jeopardy clause. See Young, 176 F.3d at 1199 (citing Hendricks, 521 U.S. at 361-63), amended (Sept. 16, 1999). In fact the Supreme Court pointedly considered the argument regarding actual conditions of confinement when dismissing Hendricks’s double jeopardy challenge:
And the conditions surrounding that confinement do not suggest a punitive purpose on the State’s part. The State has represented that an individual confined under the Act is not subject to the more restrictive conditions placed on state prisoners, but instead experiences essentially the same conditions as any involuntarily committed patient in the state *440mental institution. Because none of the parties argues that people institutionalized under the Kansas general commitment statute are subject to punitive conditions, even though they may be involuntarily confined, it is difficult to conclude that persons confined under this Act are being “punished.”
Hendricks, 521 U.S. at 363 (citation omitted); see also Allen v. Illinois, 478 U.S. 364, 373, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986) (“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.”). If the reciprocal proposition is factually established, i.e., actual confinement under punitive conditions, the statute as applied to that individual imposes double jeopardy because it punishes once again for a crime previously prosecuted and a sentence already served. It is therefore not only appropriate but necessary for the court to examine the actual sanction as applied in a particular case to determine if double punishment is imposed contrary to the double jeopardy clause.42
VI
Equal Protection under State and Federal Constitutions is not Equal
Whether Turay has been deprived equal protection of the laws contrary to either the federal or state constitutions cannot be determined from the majority’s conclusory and superficial analysis of the obvious differences between the *441state and federal constitutional clauses. The majority states, “a long line of Washington cases establishes that the two clauses have the same impact.” Majority at 412. I disagree. Although in some situations neither constitution is violated, that is not to say these very different clauses have the same meaning.43
“[T]he extent to. which the constitutional guaranties found in article I, section 12, exceed those available under the equal protection clause of the Fourteenth Amendment remains an open question.” Griffin v. Eller, 130 Wn.2d 58, 65, 922 P.2d 788 (1996) (citing Sofie v. Fibreboard Corp., 112 Wn.2d 636, 642 & n.2, 771 P.2d 711, 780 P.2d 260 (1989); State v. Smith, 117 Wn.2d 263, 282-88, 814 P.2d 652 (1991) (Utter, J., concurring)); see also Darrin v. Gould, 85 Wn.2d 859, 868, 540 P.2d 882 (1975) (“Const, art. 1, § 12 may be construed to provide greater protection to individual rights than that provided by the equal protection clause.”).44 Justice Utter has eloquently explained the distinction between the federal and state equal protection clauses:
We cannot ignore the plain difference in the language and history that exists between the federal equal protection clause and the privileges and immunities language of our own constitution. To do so is to rewrite our constitution without benefit *442of a constitutional convention and to deprive the people of this state of additional rights, which they adopted in our constitutional convention, without their consent.
Smith, 117 Wn.2d at 282 (Utter, J., concurring).
As we are not automatically compelled to conclude the two clauses are always identical in effect and because Turay has urged an independent Gunwall45 analysis, I believe a separate analysis under the Washington privileges and immunities clause is necessary to properly address the question and object to the superficial treatment afforded this important state constitutional question by the majority.
VII
Conclusion
Mr. Turay is unconstitutionally confined and I would release him. That such a result might not be welcome in all quarters is no reason to abandon the legal rights of this man — and we must be exceptionally firm in this resolve— for it is in just such unpopular circumstances that the courts must act from principle, not expediency, if they are to discharge their duty.
Should however this matter be retried, I would protect Turay’s right to appeal and his Sixth Amendment right to represent himself; I would allow the introduction of evidence concerning the conditions of his confinement; and I would protect Turay’s right to challenge testimony that he should lose his liberty simply because he has accessed, or attempted to access, the judicial system. I would redraft the jury instructions to make sure the reasonable doubt standard is preserved, not defeated by doubletalk. Finally I would refrain from weakening the state constitutional equal protection guarantees, the heritage of every citizen of *443this state, which are expressed in a unique text very unlike its national counterpart.
After modification, further reconsideration denied December 22, 1999.
The majority asserts that “the dissent fails to sufficiently appreciate the strong presumption against a defendant’s effective waiver of his or her right to counsel.” Majority at 399 n.13 (citing Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977) and State v. Robtoy, 98 Wn.2d 30, 40, 653 P.2d 284 (1982)). The presumption against waiver of counsel is not, however, a presumption against one’s substituting self-representation for retained or appointed representation. These cases involved the waiver of the right to counsel during a custodial interrogation — not an election of self-representation at trial. The majority cites no authoriiy to support the claim that one is presumed not to elect self-representation at trial.
The majority points to Turay’s February 1994 motion as evidence of his equivocation. “Further, it is noteworthy that Turay’s request to proceed without counsel was actually his third request, thereby undermining his assertion that his request was unequivocal.” Majority at 398. But three requests seem more emphatic than one.
See VRP (Nov. 16, 1993) at 6 (Turay asked the court if “You think we could just maybe postpone this [appointing Ms. Shaw] for a little bit until you find out from Mark of what’s going on instead of coming to any hasty decision?”); see also VRP (Nov. 16, 1993) at 14 (Turay stated, “As long as the Court realizes that, you know, I haven’t made that decision [to work with Ms. Shaw], ... I could probably make a decision after we talked. . . . I — I’m not going to, you know, say no to that, but, at the same time, I don’t want — I would ask that this Court not make any ruling that she is appointed by the court as my counsel, though.”).
See Verbatim Report of Proceedings (RP) (Feb. 25, 1994) at 2 (“THE COURT: The reason I asked for this hearing is because of the concerns that we dealt with the last time we were here and, in particular, Mr. Turay, you had made a request to go pro se. I denied that request.”).
Not only did the State’s testimony open the door to Turay’s proposed rebuttal, which would have included an explanation about the factual basis for such a suit, but it highlights so-called expert testimony which draws an adverse psychological inference from the exercise of a prisoner’s legal rights. Such testimony continues an unfortunate and dangerous trend. Cf. In re Detention of Petersen, 138 Wn.2d 70, 71 n.21, 980 P.2d 1204 (1999) (Sanders, J., dissenting).
The jury was instructed separately that “likely” is defined as “a proposition [that] is more probably true than not.” RP (Oct. 7, 1994) at 18.
RCW 71.09.060(1) expressly provides, “The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator.”
See State v. Perez, 90 Haw. App. 113, 128-29, 976 P.2d 427 (1998) (court’s instruction jury must convict if “firmly convinced” of guilt diminished the very high burden of proof of beyond a reasonable doubt to that of clear and convincing evidence and constituted reversible error), aff'd in part, rev’d in part, 90 Haw. 65, 67, 976 P.2d 379 (1999); see also State v. Baker, 309 S.C. 436, 437, 424 S.E.2d 492 (1992) (instruction defining reasonable doubt as a “doubt arising from the evidence presented or lack of evidence that created a strong uncertainty in your minds” as to guilt violated due process as finding of guilt could be based on degree of proof below that required by the due process clause).
In re Personal Restraint of Young, 122 Wn.2d 1, 23, 857 P.2d 989 (1993) also leaves open the door to an as-applied challenge: “Absent any indication that a criminal purpose was intended, or actually served by the statute, the stated civil goals of the Legislature are controlling.” (citation omitted) (emphasis added). But because the record there did not contain evidence of the conditions of confinement, the court confined its analysis to the facial validity of the statute.
There is no evidence in the record addressing either the actual conditions of confinement, or the quality of treatment. These issues are not currently before the court. Facially, the Statute and associated regulations suggest that the nature and duration of commitment is compatible with the purposes of the commitment.
Id. at 35 (emphasis added).
The Fourteenth Amendment to the United States Constitution states in pertinent part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Article I, section 12 of the Washington State Constitution states: “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.”
Although the majority criticizes these sources as having “little precedential value,” Majority at 413 n.25, the majority does not critically examine the difference in the language and the history that clearly separates the federal equal protection clause from the state privileges and immunities language but merely cites a “long line of cases” which uncritically assume the two clauses have the same impact. Moreover, to say the clauses have the “same” impact implies that when and if the Supreme Court changes its view of federal equal protection the state constitution must then assume a new meaning. This logic is specious. Cf. In re Detention of Petersen, 138 Wn.2d 70, 95-107, 980 P.2d 1204 (1999) (Sanders, J., dissenting).
State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986).