(dissenting) — The commitments of the petitioners should be reversed because the jury impaneled *767in each case was not properly instructed. In order for a commitment of a sexually violent predator to stand, the fact finder must specifically determine that the alleged predator suffers from serious difficulty controlling behavior. Because the jury in the commitment trial of each of these petitioners was not instructed on this element, it could not have made such a determination. In my view, the majority errs in holding otherwise. I also disagree with the majority’s overruling of our recent holding in In re Detention of Brooks, 145 Wn.2d 275, 36 P.3d 1034 (2001). I, therefore, respectfully dissent.
Petitioners’ argument that the jury was not adequately instructed20 is premised upon United States Supreme Court decisions construing an almost identical Kansas statute. See Kansas v. Crane, 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002); Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). It is apparent from the face of each of these decisions that the only means by which a state may constitutionally confine an individual indefinitely as a sexually violent predator outside of the criminal process is by proving that the individual lacks normal volitional capacity. As the Court indicated in Hendricks, civil commitment statutes have been sustained only “when they have coupled proof of dangerousness with the proof of some additional factor, such as a ‘mental illness’ *768or ‘mental abnormality.’ ” Hendricks, 521 U.S. at 358. The Supreme Court explained:
These added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Kansas Act is plainly of a kind with these other civil commitment statutes: It requires a finding of future dangerousness, and then links that finding to the existence of a “mental abnormality” or “personality disorder” that makes it difficult, if not impossible, for the person to control his dangerous behavior.
Id. Although lack of volitional control was not at issue in Hendricks because the respondent acknowledged it, it was at issue in Crane.
In Crane, the Kansas Supreme Court reversed a sexual predator commitment because there was no finding that the defendant could not control his dangerous behavior. The State obtained review of the Kansas decision in the United States Supreme Court, arguing that a finding of complete absence of volitional control was not required by Hendricks. The United States Supreme Court agreed with Kansas, but went on to say:
We do not agree with the State, however, insofar as it seeks to claim that the Constitution permits commitment of the type of dangerous sexual offender considered in Hendricks without any lack-of-control determination. Hendricks underscored the constitutional importance of distinguishing a dangerous sexual offender subject to civil commitment “from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.” That distinction is necessary lest “civil commitment” become a “mechanism for retribution or general deterrence”—functions properly those of criminal law, not civil commitment. The presence of what the “psychiatric profession itself classifie[d] ... as a serious mental disorder” helped to make that distinction in Hendricks. And a critical distinguishing feature of that “serious . . . disorder” there consisted of a special and serious lack of ability to control behavior.
Crane, 534 U.S. at 412-13 (citations omitted). The Supreme Court emphasized that “there must be proof of serious *769difficulty in controlling behavior. And this . . . must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case.” Id. at 413. Consequently, the Court vacated the decision of the Kansas Supreme Court and remanded for further proceedings consistent with its opinion.
Confirmation that Crane requires a separate finding on lack of volitional control can be found in the dissenting opinion in that case. The two dissenting justices recognized there that the majority’s decision requires a finding by the jury of a distinct element: “Today’s opinion says that the Constitution requires the addition of a third finding: (3) that the subject suffers from an inability to control behavior—not utter inability.” Id. at 423 (Scalia, J., dissenting).
The dissenters in Crane disagreed, of course, with the majority opinion. They reasoned that:
A jury determined beyond a reasonable doubt that respondent suffers from antisocial personality disorder combined with exhibitionism, and that this is either a mental abnormality or a personality disorder making it likely he will commit repeat acts of sexual violence. That is all the SVPA [Kansas Sexually Violent Predator Act] requires, and all the Constitution demands.
Id. at 425 (Scalia, J., dissenting). The dissenters would have concluded that serious difficulty controlling behavior was “embraced within the finding of mental abnormality causing future dangerousness.” Id. at 420 (Scalia, J., dissenting). Although the dissent in Crane was not without reason, it was a dissent! Inexplicably, our majority in this case follows the Crane dissent rather than the holding embraced by a majority of the United States Supreme Court.
As even the Crane dissenters acknowledged, Crane recognized that the Constitution of the United States requires a showing of serious difficulty controlling behavior to justify *770the massive curtailment in liberty inherent in commitment. The State must prove serious volitional difficulty beyond a reasonable doubt because where liberty is at stake, the State bears the burden to prove each and every element necessary to justify a verdict for the State. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The deprivation of liberty of civil commitment requires due process protections. Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). Washington law requires the State to prove each element required for civil commitment of sexually violent predators beyond a reasonable doubt. In re Det. of Turay, 139 Wn.2d 379, 407, 986 P.2d 790 (1999), cert. denied, 531 U.S. 1125 (2001). Even if I were to agree with the dissent in Crane that the element of serious difficulty is implicit in the finding of mental illness, the burden would still be on the State to prove serious difficulty as an implied element if it were contested at trial. See State v. Robbins, 138 Wn.2d 486, 495, 980 P.2d 725 (1999).
The majority does not require that lack of volitional control be submitted to a jury as a separate element, but it requires “proof beyond a reasonable doubt of serious difficulty controlling behavior” be found in the record on review. Majority at 745. This subverts the principle that a person facing commitment as a sexually violent predator has the right to have each element submitted to a jury. RCW 71.09.050(3). Because the State has the burden of proof, there must be an instruction if the jury is to make a determination that the required element has been met. As even its own dissent recognized, Crane requires that “a jury in an SVPA commitment case [is] required to find, beyond a reasonable doubt. . . that the subject suffers from an inability to control behavior.” Crane, 534 U.S. at 422-23 (Scalia, J., dissenting).
Our majority scrambles to find support for its no-separate-element result in decisions from Arizona, Massachusetts, Minnesota, and the Eighth Circuit, citing In re Leon G., 204 Ariz. 15, 59 P.3d 779 (2002); In re Dutil, 437 Mass. *7719, 768 N.E.2d 1055 (2002); and Linehan v. Milczark, 315 F.3d 920 (8th Cir. 2003) (Linehan V). Of course precedents from sister states and other jurisdictions do not determine the outcome of this case. State ex rel. Todd v. Yelle, 7 Wn.2d 443, 451, 110 P.2d 162 (1941).
The majority relies heavily on the Eighth Circuit’s recent decision in Linehan V, 315 F.3d 920. The majority characterizes the Eighth Circuit’s opinion as not requiring a separate finding of lack of control. Majority at 739. Yet the Eighth Circuit remarked that Linehan’s initial commitment order made a specific finding on a lack of control over his sexual impulses, which is in contrast to the commitment orders of the petitioners here. Linehan V, 315 F.3d at 928. The issue of a separate finding was therefore not before the Eighth Circuit.
In addition, the no-separate-element reasoning endorsed by the Minnesota Supreme Court in the In re Linehan, 594 N.W.2d 867 (Minn. 1999) (Linehan IV) opinion, and by the majority here, has been called into question by subsequent Supreme Court decisions. The Supreme Court granted certiorari, vacated, and remanded a case from Illinois, In re Detention of Varner, 198 Ill. 2d 78, 759 N.E.2d 560, 259 Ill. Dec. 780 (2001), vacated sub nom. by Varner v. Illinois, 537 U.S. 802, 123 S. Ct. 69, 154 L. Ed. 2d 3 (2002), for further consideration in light of Crane. It is noteworthy that the holding of the vacated opinion was very similar to the majority’s holding here:
The Illinois law challenged by Varner is similar to the Kansas statute upheld by the United States Supreme Court in Hendricks. As with the Kansas statute, this state’s Sexually Violent Persons Commitment Act requires that the future danger posed by an individual be linked to the existence of a mental condition.. . . What is significant is that, as with the Kansas law, the mental condition required in Illinois must be one which affects an individual’s ability to control his conduct.
If the inclusion of such a requirement was sufficient to sustain the Kansas law against a substantive due process challenge, it is sufficient to save the Illinois law. As noted *772earlier in this disposition, the jury here received instructions that tracked the language of the Act. Under those instructions, the jury’s conclusion that Varner was a sexually violent person necessarily required a determination that he suffered from a mental disorder. For the reasons set forth in Hendricks, the precommitment requirement of a mental disorder, as defined by the Act, was sufficient to “narrow [ ] the class of persons eligible for confinement to those who are unable to control their dangerousness.” Hendricks, 521 U.S. at 358, 117 S. Ct. at 2080, 138 L. Ed. 2d at 513. Accordingly, there was no need for the jury to make any additional findings in this case regarding Varner’s ability to control his sexually violent conduct.
Varner, 759 N.E.2d at 563-64 (some citations omitted). A subsequent Illinois appellate decision has recognized that after Crane there must be a determination the defendant has serious difficulty controlling behavior, and failure to make this determination at trial requires remand to the trial court. See People v. Gilford, 336 Ill. App. 3d 722, 784 N.E.2d 841, 271 Ill. Dec. 287 (2002).
The Supreme Court also granted certiorari of In re Martinelli, 2000 Minn. App. LEXIS 973, 2000 WL 1285430 (Minn. Ct. App. Sept. 12, 2000), an unpublished opinion of the Minnesota Court of Appeals. Martinelli v. Minnesota, 534 U.S. 1160, 122 S. Ct. 1171, 152 L. Ed. 2d 114 (2002). The Supreme Court vacated that opinion, in which the Minnesota Court of Appeals had directly relied on the reasoning of Linehan IV to read into the Minnesota statute an implied finding of lack of control, instead of requiring lack of control as a separate element. The Supreme Court remanded for reconsideration in light of Crane. On reconsideration, the Minnesota Court of Appeals recognized that Crane requires a specific finding of “ ‘lack of control’ based on expert testimony tying that ‘lack of control’ to a properly diagnosed mental abnormality or personality disorder before civil commitment may occur.” In re Martinelli, 649 N.W.2d 886, 890 (Minn. Ct. App. 2002), cert. denied, 538 U.S. 933 (2003).
Attempting to explain away the reconsideration of Martinelli, the majority succeeds only in revealing the flaw *773in its own reasoning. The majority finds that the error in Martinelli was that the court required only proof of inadequate control rather than “serious difficulty controlling” as required by Crane. Majority at 745 n.8. Yet our majority holds that the separate element of serious difficulty to control behavior need not be submitted to the jury. If not, how is the jury to know the standard which must be met in order to commit? The Supreme Court’s vacation and remand in both Varner and Martinelli indicates that the reasoning adopted by the majority fails to satisfy Crane’s requirement that a serious difficulty controlling behavior must be proved to the satisfaction of the fact finder.
In my opinion, the majority undervalues a decision from the Missouri Supreme Court which is directly at odds with its decision here. Majority at 741 (citing Thomas v. State, 74 S.W.3d 789, 792 (Mo. 2002)). The Missouri court recognized, as I would, that Hendricks and Crane require that a jury specifically find that a person has serious difficulty controlling behavior before that person may be committed as a sexually violent predator. Thomas, 74 S.W.3d at 791. Thomas is particularly noteworthy in light of our majority’s analysis because the Missouri court found evidence in the record to justify findings of lack of volitional control. Despite this evidence, the Missouri court reversed and remanded for new trials because it correctly recognized that without an instruction requiring the jury to find a lack of volitional control, the commitments did not comply with the constitutional requirements set out in Crane. Thomas, 74 S.W.3d at 791-92.
Our majority dismisses the Missouri court’s interpretation of Crane by putting undue focus on the Supreme Court’s comment that “ lack of control’ ” does not have a “ ‘particularly narrow or technical meaning.’ ” Majority at 741-42 (quoting Crane, 534 U.S. at 413). The majority fails adequately to explain, however, how this comment alters the constitutional requirement that a jury make the specific finding of whether a person lacks volitional control.
*774The juries in the cases before us did not find, as Crane requires, that the petitioners suffered from any serious difficulty controlling behavior. Ordinarily, the proper remedy for absence of a required element in a jury instruction is reversal. See State v. Jackson, 137 Wn.2d 712, 727, 976 P.2d 1229 (1999); State v. Smith, 131 Wn.2d 258, 262-63, 930 P.2d 917 (1997). Merely searching the record for any evidence of impaired volition is not an adequate substitute for a specific factual finding by a jury based upon an appropriate jury instruction. The majority’s approach is plainly wrong because the presence of some evidence is never an adequate substitute for a finding arrived at under the required burden of proof. A finding can be made by the trier of fact only after it determines what evidence is persuasive and credible and weighs it against the requisite standard of proof. See Jackson v. Virginia, 443 U.S. 307, 316-20, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (discussing review of sufficiency of evidence).
Unfortunately, the majority dispenses with the constitutional requirement of a specific factual finding of a significant volitional impairment established beyond a reasonable doubt. The majority recognizes that “[freedom from bodily restraint has always been at the core of the liberty interest protected by the due process clause of the fourteenth amendment to the United States Constitution [and c]ommitment for any reason constitutes a significant deprivation of liberty triggering due process protection,” but it makes hollow these high sounding words. Majority at 731 (citing Foucha v. Louisiana, 504 U.S. 71, 80, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992)). Ultimately, the majority’s approach weakens all of our fundamental civil liberties for the sake of confining indefinitely an unpopular group by stripping it of those rights which are due every person and which were secured through the blood and sacrifice of our forefathers. This I reject.
I also disagree with the majority’s overruling in our recent decision in In re Detention of Brooks, 145 Wn.2d 275. Our holding in Brooks, that there is no rational basis for *775restricting the consideration of less restrictive alternatives to total confinement until the first annual review of commitment, was correct and we should adhere to it.21
Conclusion
I would reverse the commitment of these petitioners because the jury in each of petitioners’ commitment trials was not properly instructed. Because the juries were not properly instructed, we should remand for new hearings at which the jury should be instructed per Crane, 534 U.S. 407, that in order to commit it must find that the alleged sexual predator suffers from serious difficulty controlling behavior. Because the majority does otherwise, I dissent.
The jury in each of the cases before us was given an instruction essentially identical to that given in In re Detention of Thorell, No. 96-2-12247-5 (King County Super. Ct. Feb. 13, 1998), which read: “To find that the Respondent,..., is a sexually violent predator, the State must prove each of the following elements beyond a reasonable doubt:
“(1) That the Respondent has been convicted of a crime of sexual violence: specifically, indecent liberties against a child under age fourteen;
“(2) That the Respondent suffers from a mental abnormality and/or a personality disorder; and
“(3) That this mental abnormality and/or personality disorder make the Respondent likely to engage in predatory acts of sexual violence if not confined to a secure facility.” Clerk’s Papers (CP) at 1727 (Thorell Jury Instruction 7); CP at 12 (Ross Jury Instruction 6); CP at 305 (Gordon Jury Instruction 9); CP at 867 (Bishop Jury Instruction 13); CP at 1261 (Strauss Jury Instruction 8); CP at 21 (Johnson Jury Instruction 7).
I do not disagree with the majority's decision regarding the admissibility of actuarial instruments.