(concurring/dissenting) — I agree relieving the State of its obligation to prove that the prisoner could not be safely confined to a less restrictive alternative (LRA) at a chapter 71.09 RCW commitment trial violates equal protection. However I disagree that the jury should be instructed that the court lacks authority to order confinement to an LRA, and I further disagree that the State satisfies its constitutionally minimum burden to justify confinement when the question presented to the jury is merely whether the defendant is “likely” to reoffend if not so confined.
I. Instruction on Court’s Lack of Authority to Order LRA
The majority asserts, without benefit of citation or analysis, the State is entitled to “an instruction which informs the jury the court has no authority to order the defendant into an LRA or to undergo treatment in an LRA.” Majority at 293. Although this is an accurate statement of the law, it defeats the purpose of a proper instruction, which is “to furnish guidance to the jury in its deliberations.” State v. Allen, 89 Wn.2d 651, 654, 574 P.2d 1182 (1978). It fails to furnish guidance because, as the majority has determined, the court’s ability to order an LRA is irrelevant to the factual determination of whether or not the individual could be safely placed in an LRA, regardless of whether or not one actually exists. Not only does the instruction fail to furnish guidance helpful to the jury’s performance of its duties, it affirmatively misdirects the attention of the jury to a legal circumstance which is irrelevant to its deliberation, and consideration of which is prejudicial to the rights *300of the defendant. Such an instruction can serve no purpose other than invite the jury to require incarceration because no LRA is available to the court.
II. Standard of Proof
RCW 71.09.060(1) provides: “The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator.” A “sexually violent predator” is defined as a person:
(1) who has been convicted of or charged with a crime of sexual violence;
(2) who suffers from a mental abnormality or personality disorder; and
(3) whose mental abnormality or personality disorder makes him likely to engage in predatory acts of sexual violence if not confined in a secure facility.
See former RCW 71.09.020(1) (1995) (emphasis added). The standard of proof as to elements (1) and (2) are not being disputed, only element (3).
The majority would allow a jury to discharge its duty in an illusory manner by inviting it to find, beyond a reasonable doubt, the defendant possesses a mental abnormality or personality disorder which makes him likely to engage in predatory acts of sexual violence. The fly in the ointment is the instruction’s failure to require the jury to find a fact rather than consider a probability. If a mere probability were sufficient the jury would be asked to determine by a preponderance of the evidence that the individual would engage in predatory acts of sexual violence.
At civil commitment trials, like the proceeding here, the United States Constitution has been construed to require proof by at least clear, cogent, and convincing evidence. Addington v. Texas, 441 U.S. 418, 431, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). However the proof so required is to establish a fact, not a probability.
The majority claims this illusory standard passes constitutional muster under Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) because Kansas *301passed a similar statute which withstood constitutional challenge. However, the majority’s analysis is obviously deficient because our particular question was never presented, much less decided, by the Supreme Court in Hendricks. Rather the issue in Hendricks was whether Kansas’s statutory definition of “mental abnormality” satisfied substantive due process. 521 U.S. at 356. “Mental abnormality” corresponds to one element of proof under our sexually violent predator statute, but not the element at issue here. The Supreme Court never addressed the question of whether the term “likely” in the Kansas statute unconstitutionally diminishes the overall standard of proof. In fact that Court never addressed any standard of proof issue at all.
On the other hand, Addington clearly holds that the constitutionally minimum standard of proof at civil commitment trials is proof by clear, cogent, and convincing evidence, or clear and convincing evidence. There the Supreme Court concluded, “[T]he individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” Addington, 441 U.S. at 427. Furthermore:
Having concluded that the preponderance standard falls short of meeting the demands of due process and that the reasonable-doubt standard is not required, we turn to a middle level of burden of proof that strikes a fair balance between the rights of the individual and the legitimate concerns of the state.
Id. at 431 (leaving it to the states to determine whether to employ, at a constitutional minimum, the standard of “clear and convincing evidence” or “clear, cogent, and convincing evidence”).
The majority believes the Texas statute at issue in Addington contains the same standard of proof on dangerousness as in element (3) of our sexually violent predator statute (i.e., “likely”) and therefore our statute overall meets the standard set forth in Addington. See majority at *302295-96. However unlike the use of “likely” in former RCW 71.09.020(1) and “beyond a reasonable doubt” in RCW 71.09.060, the Texas statute contained no standard of proof. The Texas statute required the fact finder to determine “ ‘whether [the defendant] requires hospitalization in a mental hospital for his own welfare and protection or the protection of others.’ ” Addington, 441 U.S. at 420 (quoting Tex. Rev. Crv. Stat. Ann. art. 5547-51(2) (Vernon 1958)). This required proof that the defendant will in fact harm himself or others if not confined. It did not require proof of probable harm or “likely” harm as does our statute. Thus, when the Supreme Court stated the Constitution requires a standard of proof by clear, cogent, and convincing evidence, that meant the Texas statute had to require proof at least by clear, cogent, and convincing evidence that the defendant will in fact harm himself or others if not confined, not proof by clear, cogent, and convincing evidence that there is a “likelihood” he will.
Notwithstanding the clarity of the Texas statute and the Addington holding, the majority believes that “as applied” the Texas statute is just like our statute because it required proof of “probable dangerousness.” Majority at 295. The majority points out (1) two psychiatrists provided testimony that the defendant was probably dangerous, (2) the defendant attempted to rebut this testimony, and (3) the Supreme Court used the words “probable dangerousness” in one sentence describing civil commitment statutes generally. Majority at 295-96. I submit the testimony of two psychiatrists, one party’s argument, and one general sentence in a federal court opinion shed little light, if any, on the meaning of Texas law “as applied.”
Instead we should look to Texas law.3 As discussed above, the Texas statute itself was clear and did not refer to probable or likely harm—it required proof of actual harm to self or others. Moreover Texas cases interpreting that *303statute after Addington did not apply it as requiring proof of probable or likely harm—they applied it to require proof of actual harm. See, e.g., Lodge v. State, 597 S.W.2d 773, 778-79 (Tex. Ct. App. 1980). The majority’s belief the Texas statute “as applied” has a different meaning than what it says has no foundation. Its reliance on Addington as an opinion interpreting a statute similar to ours is misplaced. The statutes are not the same—either expressly or as applied. Accordingly, while Addington established the overall constitutional standard of proof, it does not dictate that our sexually violent predator statute meets this standard.
III. The Washington Sexually Violent Predator Statute Does Not Meet the Constitutional Minimum Standard of Proof in Addington.
As construed by the majority the standard of proof in our sexually violent predator statute falls short of requiring the constitutionally minimum clear, cogent, and convincing evidence. For that matter when “beyond a reasonable doubt” in RCW 71.09.060 and “likely” in former RCW 71.09.020(1) are conflated the overall standard of proof is even lowered to below a preponderance. This does not pass constitutional muster.
The majority restates the standard as follows:
the trier of fact must have the subjective state of certitude [beyond a reasonable doubt] in the factual conclusion that the defendant more likely than not would reoffend if not confined in a secure facility. As set out in the statute, the fact to be determined is not whether the defendant will reoffend, but whether the probability of the defendant’s reoffending exceeds 50 percent.
Majority at 298. To begin, the majority imprecisely rewords the third element of the statute. Element (3) does not require proof merely that the defendant will likely reoffend; it requires proof that the defendant’s mental abnormality or personality disorder will make him likely to reoffend. Former RCW 71.09.020(1).
*304More important to our inquiry here, however, is that the majority’s rewording of the statute makes the constitutional violation clear. An objective state of certitude (a 100 percent certainty) that there is more than a 50 percent chance (“it is likely”) the defendant’s abnormality or disorder will cause him to reoffend simply requires the State to prove it is likely the defendant’s abnormality or disorder will cause him to reoffend. This requires a mere preponderance, and a preponderance standard requires less of a showing than proof by clear, cogent, and convincing evidence—the constitutional minimum.
The majority does not even require proof to a 100 percent certainty of a more than 50 percent probability; it requires the lesser showing of proof beyond a reasonable doubt of this likelihood.
The majority’s rationale entirely rests on the myopic distinction between the ultimate standard of proof and the “fact to be proved” or the “fact to be determined.” See generally majority at 295-98. Because the standard of proof in commitment trials is proof beyond a reasonable doubt and the “fact to be proved” is element (3) of former RCW 71.09.020(1), the majority simply concludes our statute satisfies Addington. Majority at 296. However, this reasoning obscures the issue here where the “fact” to be proved is the defendant’s mental abnormality or personality disorder makes him likely to reoffend.
Consider the majority’s rationale in another context. Let us assume the legislature amended the first degree murder statute to require proof that the defendant likely had premeditation, likely had intent, and likely caused the death of another without justification—all “facts to be proved” according to the majority. Let us also assume the legislature maintained the requirement that the elements of first degree murder be proved beyond a reasonable doubt. Under the majority’s reasoning, the amendment would be constitutional because the standard of proof would remain beyond a reasonable doubt; only the “facts to be proved” have changed. I submit that, by requiring proof only of likely premeditation, likely intent, and likely causation, the *305state would have to come forth with significantly less evidence to prove its case than under the current first degree murder statute. In no sense would the overall standard of proof in fact be the same.
IV. Conclusion
It is improper to instruct the jury that the court lacks authority to order confinement to a less restrictive alternative.
Moreover, to be constitutional, the sexually violent predator statute must require, at a minimum, proof by clear, cogent, and convincing evidence the defendant’s mental abnormality or personality disorder will cause him to reoffend. Proof beyond a reasonable doubt the defendant’s mental abnormality or personality disorder will likely cause him to reoffend requires significantly less of a showing than the Constitution requires.
Therefore I dissent.
Specifically, to Texas law interpreting Tex. Rev. Civ. Stat. Ann. art. 5547-51(2) (Vernon 1958) after Addington but before the Texas legislature later amended the statute.