(dissenting) — Due process legitimacy in the factual and legal context before us is established. In re Det. of Henrickson, 140 Wn.2d 686, 2 P.3d 473 (2000). In this remand to reconsider our presumably inconsistent holding in light of Henrickson, I would now affirm. Mr. Albrecht was incarcerated when served with a sexual predator petition. Under Henrickson, the State did not have to prove a recent overt act under chapter 71.09 RCW.
The Henrickson court reasoned “[w]hen, on the day a sexually violent predator petition is filed, an individual is incarcerated for a sexually violent offense, RCW 71.09-.020(6), or for an act that would itself qualify as a recent *176overt act, RCW 71.09.020(5), due process does not require the State to prove a further overt act occurred between arrest and release from incarceration.” Henrickson, 140 Wn.2d at 695. This reflects deference to the Legislature’s function of deciding controversial policies underlying laws, laws that according to individual judicial perspective may be viewed as good or bad. State v. Laitinen, 77 Wn.2d 130, 133, 459 P.2d 789 (1969) (“It is not the court’s function to decide whether the statute is sound or unsound, wise or unwise, effectual or ineffectual — but only whether it is within the legislature’s constitutional powers to enact it.”). Once the critical law is interpreted or found unambiguous, and is declared constitutional, our duty is to review the trial court application for consistency with announced precedent.
At petition filing, Mr. Albrecht was incarcerated for a sexually violent offense in the literal and legal sense that he violated a release condition issued upon conviction for a sexually violent offense. Indeed, Mr. Albrecht did not even challenge his reincarceration for improperly contacting two boys, theoretically for improper sexual purposes. Pretext is not an issue. His incarceration was total confinement, not some hybrid, like work release or home detention. Therefore, under Henrickson, the State had no burden to prove a recent overt act under RCW 71.09.060(1). RCW 71.09-.030(5) limits the recent overt act requirement to persons released from “total confinement.” Henrickson, 140 Wn.2d at 692-93.
Out-of-custody stints were not material in the Henrickson court’s due process analysis. ‘While we agree that an opportunity to reoffend should be a factor in the commitment determination, this does not mean proof of a recent overt act during that period of release is constitutionally required.” Henrickson, 140 Wn.2d at 694. The court in Henrickson rejected the overt act arguments made here under In re Personal Restraint of Young, 122 Wn.2d 1, 41, 857 P.2d 989 (1993); Henrickson, 140 Wn.2d at 694-95. Notably, the Henrickson court reasoned that under Young, *177it mattered not whether release into the community was before or after the commission of the most recent offense, so long as the respondent was incarcerated when the petition was served. Id. at 695-96.
In sum, stare decisis in my view binds us to affirm the trial court’s decision allowing the State’s amendment deleting the recent overt act allegation. Accordingly, I respectfully dissent.
Review granted at 145 Wn.2d 1001 (2001).