(dissenting) — I respectfully dissent. Society has a legitimate interest in protecting its citizens from those who commit violent acts. Because the past is an indicator of the future, society has a legitimate interest in ensuring that those who have committed violent acts do not do so again. Society may constitutionally detain those who have been found beyond a reasonable doubt to have committed acts which would be felonies except for the actor’s insanity, provided the statutory scheme is narrowly tailored to meet the state’s legitimate interest, the detention is not arbitrary, and the detainee is provided adequate constitutional protections. Thomas Reid was acquitted of homicide by reason of insanity and committed to Western State Hospital. Three years later, he petitioned for release. His treatment team believes, and the trial court found, he was a suitable candidate for conditional release, but not a suitable candidate for unconditional release. Washington State has a legitimate interest in integrating Reid back into society slowly on a conditional program. The statute and the constitution support the trial court and the Court of Appeals, and I would affirm.
The majority ably and correctly recites the facts. Reid killed his roommate, but was found not guilty by reason of insanity. He now petitions for final release. Dr. Brett Trowbridge testified Reid has a “fragile psyche,” and could easily become delusional again. Report of Proceedings (RP) (July 20,1998) at 25. The doctor characterized this fragility as a mental defect though he acknowledged “fragile psyche” is not a recognized disorder or defect within the annals of the science of psychology. RP at 25, 26, 29. Dr. Trowbridge recommended conditional release, fearing under the stress of life outside Western State Hospital, Reid could again succumb to psychosis. RP at 24, 34. Dr. Christian Harris similarly testified Reid suffered from a “fragility” to drugs, testifying that if Reid “uses hallucinogenic drugs or other drugs, he’s putting himself in grave risk and the community in grave risk.” RP at 16. We must decide whether the Legislature intended detainees like Reid be abruptly released into the community, or whether the Legislature *633intended the detainees have a gradual, supervised period of reintroduction.
The trial court found “Reid has not met his burden of proof demonstrating that he no longer presents, as a result of a mental disease or defect, a substantial danger to other persons or a substantial likelihood of committing felonious acts.” Clerk’s Papers (CP) at 27. The trial court also found Reid was not currently suffering a mental disease or defect, when it ruled: “Showing that he is not currently suffering a mental disease or defect is not sufficient alone to meet the statutory requirements based on a plain reading of the statute.” CP at 27. The majority finds the trial judge fundamentally misunderstood the statute by not ordering final release, which is a regrettable error.
Chapter 10.77 RCW
Petitioners may seek release two different ways under our statutory scheme. They may petition the secretary of Department of Social and Health Services for conditional release under RCW 10.77.150. If the secretary agrees that conditional release is appropriate, the petition will be forwarded to a trial court for a full adversarial hearing. If the secretary declines to recommend release, the trial court may still schedule a hearing. In that instance, the issue to be determined is “whether or not the person may be released conditionally without substantial danger to other persons, or substantial likelihood of committing criminal acts jeopardizing public safety or security.” RCW 10.77.150(2).
Alternately, a detainee may seek final or conditional release under RCW 10.77.200. Again, the detainee may apply to the secretary, and if the secretary agrees release is appropriate, the application will be forwarded to the court for a hearing. In that instance, the petitioner (the secretary or the detainee) must:
[S]how by a preponderance of the evidence that the petitioner no longer presents, as a result of a mental disease or defect, a *634substantial danger to other persons, or a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.
RCW 10.77.200(2). However, RCW 10.77.200(3) explicitly lays out that a petitioner may petition the court directly. The issue to be determined is the same.
The trial court correctly read the statute. By its plain terms, final release is inappropriate unless the petitioner demonstrates either that he no longer presents “as a result of a mental disease or defect, a substantial danger to other persons” or that he no longer presents “a substantial likelihood of committing criminal acts jeopardizing public safety or security.” RCW 10.77.200(2). While the trial judge found Reid was not currently suffering from a mental disease or defect, she clearly found he had failed to demonstrate he no longer presented a substantial likelihood of committing criminal acts jeopardizing public safety by the presence, albeit latent, of a mental disease or defect. That was sufficient to deny final release.
Further, reading the statute any other way creates a logical inconsistency. All a detainee needs to show to receive conditional release under RCW 10.77.150 is that, given the conditions of his release, he is no longer dangerous. However, under the majority’s reading, to receive final release, all he needs to show is either that he is no longer dangerous or that he is not currently insane. It strains credulity to read the statute to mean it is easier to receive final release than conditional release.
While holding a person who is currently sane might run afoul of Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992) standing alone, in the context of the entire statutory scheme, it is constitutionally acceptable, because Reid has the option of seeking conditional or final release at any time, and a very real chance of release once his situation improves. While the majority’s reading of the statute is permissible under Foucha, Foucha does not require it. We therefore turn now to Foucha.
*635 Foucha
Foucha was a challenge to the Louisiana civil commitment system. Louisiana allowed the continued detention, without regular court review, of criminal defendants acquitted by. reason of insanity so long as they were still dangerous. Regaining sanity was never grounds for release. In Foucha, the United States Supreme Court found this violated due process. Foucha, 504 U.S. at 73. The defendant had been acquitted, by reason of insanity, of burglary and illegal discharge of a firearm and committed to a psychiatric facility. Four years later the superintendent recommended conditional discharge because Foucha no longer manifested signs of mental illness.
Two doctors commissioned by the trial court concluded Foucha’s mental illness was in remission, but neither of them could certify he was not a “menace” to himself or others. One of the doctors concluded Foucha had suffered from drug-induced psychosis at the time of the crime, but currently showed no symptoms. However, Foucha did suffer from “antisocial personality” — which is neither a mental disease nor treatable illness. Foucha, 504 U.S. at 75. Nonetheless, the trial court denied the petition for conditional release. The Louisiana Supreme Court affirmed placing the burden of proof on Foucha to prove he was not dangerous and found he had not met this burden.
In a sharply divided decision, the United States Supreme Court reversed, holding Foucha’s continued detention based on dangerousness and antisocial personality disorder violated his right to due process. Foucha, 504 U.S. at 75-78. The Court held that “[d]ue process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed.” Foucha, 504 U.S. at 79 (citing Jones v. United States, 463 U.S. 354, 368, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983)). Detainees are “entitled to constitutionally adequate procedures to establish the grounds for his confinement.” Foucha, 504 U.S. at 79 (citing Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. *6361845, 32 L. Ed. 2d 435 (1972)). Further, the Court stressed the substantive component of the due process clause, which “bars certain arbitrary, wrongful government actions ‘regardless of the fairness of the procedures used to implement them.’ ” Foucha, 504 U.S. at 80 (quoting Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990)). “Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha, 504 U.S. at 80 (citing Youngberg v. Romeo, 451 U.S. 307, 316, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982)).
Notwithstanding these overarching principles, not all detention schemes fail. The Court cited three examples of constitutional detention or commitment: (1) confinement of convicted criminals for purposes of retribution and punishment, (2) commitment of the mentally ill based on clear and convincing evidence of mental illness and dangerousness, and (3) pretrial detention based on a legitimate and compelling interest in preventing crime by the arrestee. Foucha, 504 U.S. at 80-81.
Concurring, Justice O’Connor (who provided the vital fifth vote for the majority) stressed the Court’s holding should not be read to mean an insanity acquittee who regained sanity should always automatically be released. “It might therefore be permissible for Louisiana to confine an insanity acquittee who has regained sanity if, unlike the situation in this case, the nature and duration of detention were tailored to reflect pressing public safety concerns related to the acquittee’s continuing dangerousness.” Foucha, 504 U.S. at 87-88 (O’Connor, J., concurring). Justice O’Connor counseled we stay close to the traditional due process analysis, warning “ ‘courts should pay particular deference to reasonable legislative judgments’ about the relationship between dangerous behavior and mental illness.” Foucha, 504 U.S. at 87 (quoting Jones, 463 U.S. at 365 n.13). This is precisely the current issue before this Court.
Reading the Justice White majority and Justice *637O’Connor’s concurrence together to determine the holding, the United States Supreme Court has articulated three due process considerations for civil commitment systems such as ours: (1) the need for a current determination of mental illness and dangerousness, (2) constitutionally adequate procedures to establish the grounds for confinement, and (3) compliance with the substantive component of the due process clause preventing arbitrary confinement. Foucha, 504 U.S. at 78-80. A narrowly tailored scheme confining insanity acquittees after they have regained their sanity does not automatically run afoul of due process, but a blanket scheme will. Compare Foucha, 504 U.S. at 87-88 (O’Connor, J., concurring) with Foucha, 504 U.S. at 78-80.
Our system does not run afoul of the due process concerns articulated in Foucha. Insanity acquittees “shall have a current examination of his or her mental condition ... at least once every six months.” RCW 10.77.140. Given the frequency of this review, the first concern articulated in Foucha does not apply here.
Second, there must be constitutionally adequate procedures to establish the grounds for confinement. Under chapter 10.77 RCW, detainees are entitled to regular review and may petition the court for release. RCW 10.77.140, .150, .200. The detainee is entitled to counsel, examinations at state expense, and an adversarial hearing.
Chapter 10.77 RCW has recently been upheld in the face of a Foucha based challenge. We found insanity acquittees could constitutionally be made to bear the burden of establishing both sanity and lack of dangerousness. State v. Platt, 143 Wn.2d 242, 249-50, 19 P.3d 412 (2001). In reaching that conclusion, this Court noted:
“Those subject to criminal commitment have been found beyond a reasonable doubt to have committed an act which, except for their insanity, would have been a criminal act subjecting them to criminal penalties. . . . [P]ast conduct is heavily indicative of the likelihood that a person will commit similar acts which will again endanger others. Therefore, it is logical that those who have reached the attention of the State *638because of serious antisocial acts, would be subject to more procedural burdens in obtaining their release than are those whose acts are less threatening to the public safety.”
Platt, 143 Wn.2d at 252 (quoting State v. Platt, 97 Wn. App. 494, 505, 984 P.2d 441 (1999)).
The Ninth Circuit Court of Appeals noted “[t]he state has a substantial interest in avoiding premature release of insanity acquittees, who have committed acts constituting felonies and have been declared dangerous to society[, b]ecause ‘the insanity acquittal supports an inference of continuing mental illness.’ ” Hickey v. Morris, 722 F.2d 543, 548 (9th Cir. 1983) (quoting Jones, 463 U.S. at 366), quoted with approval in Platt, 143 Wn.2d at 250.
This is in stark contrast with the statutory system invalidated in Foucha. The detention scheme at issue in Foucha allowed the indefinite confinement of a detainee until he or she could prove by preponderance of the evidence he or she was no longer dangerous. Foucha, 504 U.S. at 82. The statute also failed to provide an adversarial hearing to prove, by clear and convincing evidence, the detainee was not dangerous. Foucha, 504 U.S. at 81. Unlike other detention statutes upheld by the Court, the detention scheme adopted by Louisiana was not narrowly focused. The Washington State Legislature took care to incorporate significant procedural safeguards, therefore, protecting the interests of the criminally insane. The safeguards provided under RCW 10.77.150, the conditional release statute, and RCW 10.77.200, the final release statute, may be summarized as follows: (1) the detainee has a right to make application to the secretary, (2) the detainee has a right to directly petition the court, (3) the detainee has a right to an adversarial hearing, (4) if indigent, the detainee has a right to have an appointed, qualified expert or professional person examine him or her, upon the detainee’s request, and (5) the detainee has a right to request a jury. These procedures were also provided under the former RCW 10.77.200, under which Reid petitioned. See former RCW 10.77.200 (1993).
*639As explained by Justice O’Connor in Foucha: “It might therefore be permissible ... to confine an insanity acquittee who has regained sanity if. . . the nature and duration of detention were tailored to reflect pressing public safety concerns related to the acquittee’s continuing dangerousness.” Foucha, 504 U.S. at 87-88 (O’Connor, J., concurring). In this instance, conditional release is narrowly tailored to protect the compelling and legitimate concern for public safety. At the time of Reid’s commitment, he had been diagnosed by two doctors as suffering from major depression and psychosis triggered by his ingestion of illegal drugs and inability to successfully deal with personal stressors, both of which made him unable to tell right from wrong at the time of the shooting. All expert witnesses have agreed if Reid were to use drugs again, it is more likely than not he would suffer another psychotic episode. There was also evidence that Reid would suffer another psychotic episode should he not successfully deal with the personal issues that contributed to his disorder. Because Reid has no history of successful independent living in the community, it is in the best interest of the community, as well as Reid, that he gradually work his way into the community, living eventually away from Western State Hospital and working independently.
Outlining the terms of Reid’s conditional release in its order of conditional release, the trial court took care to tailor the nature and duration of Reid’s conditional release, reflecting the pressing public safety concerns related to his continuing dangerousness. Among other conditions outlined in the trial court’s order of conditional release, the order provides: (1) that Reid must reside at Western State Hospital, (2) that the community program staff determines the specific residence or ward within the Legal Offender Unit in which Reid is to reside, the length of stay, and the privileges granted, (3) that in the future, Reid may move into a community residence or community supervised facility, subject to the approval of the community program staff, and (4) that the community program staff is required to *640submit a report to the court every six months or if there is a substantial change in the treatment plan or Reid’s condition. CP at 33-35. These terms bear a reasonable relationship to the purpose of Reid’s confinement.
The United States Supreme Court identified a third problem with the Louisiana statute; that it violated substantive due process. Foucha, 504 U.S. at 80. “Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.” Foucha, 504 U.S. at 80. Foucha speaks approvingly of narrowly tailored detention schemes serving legitimate state interests. Foucha, 504 U.S. at 80-82. Louisiana’s scheme “permitted] the indefinite detention of insanity acquittees who are not mentally ill but who do not prove they would not be dangerous to others.” Foucha, 504 U.S. at 83 (emphasis added). Reid’s confinement is not indefinite; he may petition for release at any time.
I therefore respectfully dissent. Conditional release, rather than final release, is clearly contemplated by the statute, and does not offend due process. The trial court and the Court of Appeals should be affirmed.
Ireland and Bridge, JJ., concur with Chambers, J.