*289¶28
Morgan, J*(dissenting) — This case involves at
least two questions not previously addressed in Washington: (1) May a defendant be committed as a sexually violent predator (SVP) even though he or she has never been convicted of a crime?6 (2) If so, may he or she be committed following a trial at which he or she was incompetent to understand the proceedings or assist in preparing and presenting a defense?7 Without meaning to suggest that the first question should be answered yes,8 I believe that the second should be answered no, at least in part.
¶29 In Washington, chapter 71.09 RCW is the statute under which a defendant may be committed as a sexually violent predator. It requires that the constitutionally-mandated element of current dangerousness9 be evidenced not just by expert testimony, but also by a recent act10 that may *290or may not have been reduced to conviction.11 When the recent act is a conviction, its occurrence will previously have been determined in a criminal trial at which the defendant was necessarily competent.12 When the recent act is not a conviction, its occurrence or nonoccurrence will be determined using the procedures set forth RCW 71-.09.060(2). Insofar as pertinent here, RCW 71.09.060(2) provides:
If the person charged with a sexually violent offense has been found incompetent to stand trial, and is about to or has been released pursuant to RCW 10.77.090(4), and his or her commitment is sought pursuant to subsection (1) of this section, the court shall first hear evidence and determine whether the person did commit the act or acts charged. . . . The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall apply. ... If, after the conclusion of the hearing on this issue, the court finds, beyond a reasonable doubt, that the person did commit the act or acts charged, it shall enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this section.
¶30 According to Greenwood, this statute violates due process, which clearly applies here.13 To analyze whether he is correct, we should assess the following factors: (1) “the *291private interest that will be affected”; (2) “the risk of an erroneous deprivation of such interest,” together with “the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”14
¶31 RCW 71.09.060(2) affects Greenwood’s private interest in his liberty.15 That interest is substantial, and the statute’s impact on it is great.16
¶32 RCW 71.09.060(2) creates a high risk that Greenwood will be erroneously deprived of liberty. Courts traditionally require an adversary proceeding to ensure that they receive both sides of the story; it is hazardous at best to rely on just one side.17 Yet that is precisely what RCW 71-.09.060(2) mandates, notwithstanding its oxymoronic grant of “all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent.” How can a defendant who is not competent to be tried — i.e., who “lacks the capacity to understand the proceedings against him or her or to assist in his or her defense”18 — furnish the information needed to mount a defense, decide whether to testify or remain silent, confront the witnesses against him, or meaningfully decide whether and how to exercise the many other rights that would be his if he were competent? An incompetent criminal defendant *292has no way to “ ‘ “make his defense” ’ ”;19 the same is true for an incompetent SVP; and in either instance the result is a one-sided proceeding with a high risk of an erroneous deprivation — regardless of whether the proceeding is labeled “civil” or “criminal.”
¶33 RCW 71.09.060(2) creates a risk that can be greatly reduced by additional safeguards. It could easily provide that Greenwood may initially be committed only until he regains his competence to stand trial,20 and that when he regains his competence, he may relitigate, in a two-sided proceeding, whether he perpetrated the required act and is an SVP.
f 34 RCW 71.09.060 implements the government’s legitimate interest in protecting the public by incarcerating and treating Greenwood. But it could do that just as well, with a minimum of additional burdens, by initially committing Greenwood only until he regains his competence to stand trial,21 then permitting him to relitigate, in a two-sided proceeding, whether he perpetrated the required act and is an SVP.
¶35 Concluding that RCW 71.09.060(2) describes a procedure that is neither reliable nor necessary, I would hold that it violates due process insofar as it purports to authorize, based on findings of fact made while Greenwood was incompetent, commitment after he regains competency. To that extent then, I respectfully dissent.
Review denied at 158 Wn.2d 1010 (2006).
Judge J. Dean Morgan was serving as a judge of this court when this case was argued. Since retired, he is now serving as a judge pro tempore.
Apparently referring to chapter 71.09 RCW in its entirety, the majority states that in In re Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993), our Supreme Court “found the statute, as a whole, constitutional.” Majority at 283; see also majority at 284. But the Young court was dealing only with defendants convicted before SVP proceedings were commenced; it neither considered nor addressed a defendant who had never been convicted.
See RCW 10.77.010(14) (“ ‘Incompetency’ means a person lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect.”). See also Drope v. Missouri, 420 U.S. 162, 171-72, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960).
Like the majority, I do not consider or discuss this first question.
The constitutionally-mandated elements of civil commitment are (1) current mental illness and (2) current dangerousness. Jones v. United States, 463 U.S. 354, 363, 368, 370, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983); see also Foucha v. Louisiana, 504 U.S. 71, 75-76, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992); Addington v. Texas, 441 U.S. 418, 426, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979); O’Connor v. Donaldson, 422 U.S. 563, 574-75, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975).
Evidence of such an act is necessary if “the standard of dangerousness” is to be “a constitutional basis for detention.” In re Harris, 98 Wn.2d 276, 285, 654 P.2d 109 (1982).
Young, 122 Wn.2d at 41-42; Harris, 98 Wn.2d at 284-85.
RCW 10.77.090(1); Medina v. California, 505 U.S. 437, 449, 453, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992) (“Due Process Clause affords an incompetent defendant the right not to be tried”); Drope, 420 U.S. at 172-73; Pate v. Robinson, 383 U.S. 375, 386, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966).
Addington, 441 U.S. at 425 (“civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection”); Harris, 98 Wn.2d at 279 (“due process guaranties must accompany involuntary commitment for mental disorders”). Hence, the State must employ “proper procedures and evidentiary standards” when it seeks to commit a person under a civil commitment statute that applies generally, Addington, 441 U.S. at 426-27, Foucha, 504 U.S. at 80, Harris, 98 Wn.2d at 284-85, or under a civil commitment statute that applies specifically to SVPs. Kansas v. Hendricks, 521 U.S. 346, 357 (majority), 374 (Breyer, J., dissenting), 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997); Young, 122 Wn.2d at 41-42.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); see also Harris, 98 Wn.2d at 285.
See Vitek v. Jones, 445 U.S. 480, 492-93, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980) (even convicted felon currently serving a sentence has a liberty interest in not being transferred to a mental institution without appropriate due process); Foucha, 504 U.S. at 78-79.
Addington, 441 U.S. at 425 (“civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection”); Jones, 463 U.S. at 361; Foucha, 504 U.S. at 80.
See Drope, 420 U.S. at 172 (common law’s prohibition against trying an incompetent defendant “is fundamental to an adversary system of justice”); Medina, 505 U.S. at 446 (same prohibition is “fundamental,” with “deep roots in our common-law heritage”).
RCW 10.77.010(14).
Medina, 505 U.S. at 446 (quoting Drope, 420 U.S. at 171 (quoting 4 William Blackstone, Commentakies *24)).
I express no opinion on whether this initial commitment would be under chapter 71.05 or 71.09 RCW, or on whether either of those statutes would need to be amended. Prom a constitutional perspective, it could last until Greenwood was no longer incompetent to stand trial, or until he was either no longer mentally ill or no longer dangerous. Cf. Foucha, 504 U.S. at 86; Jones, 463 U.S. at 370; Jackson v. Indiana, 406 U.S. 715, 724-25, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972).
See preceding note.