dissenting:
¶ 40 Because I believe the court of appeals’ opinion is legally sound, I respectfully dissent. The majority criticizes that court for reading Hendricks “too narrowly,” ¶ 10 supra, and then provides a more expansive *308interpretation of the decision. But I see little need to parse the language of the United States Supreme Court. The Hendricks opinion is clear and should be taken at face value until its authors tell us otherwise. Parenthetically, the opportunity now exists for them to do so. See In re Crane, 269 Kan. 578, 7 P.3d 285 (2000) (cert. granted, -U.S. -, 121 S.Ct. 1483, 149 L.Ed.2d 372 (2001)).
¶41 My concerns with our SVP statutes, however, go beyond the issue of volitional control. If, as a matter of sound public policy, lawmakers decide that some offenders should be removed from society for longer periods of time than others, so be it. In that event, the legislature can prescribe greater criminal sentences. It should be noted here that Arizona already has some of the harshest penalties for sex crimes of any state in the union.
¶ 42 If, on the other hand, these individuals need treatment, it is fair to ask why they are not aggressively treated during the considerable time they spend in prison serving their sentences. The practice of warehousing human beings for long, fixed prison terms and thereafter attempting to retain them indefinitely in custody for psychiatric treatment is at best wasteful, but arguably also offends traditional notions of justice and fair play. Moreover, it threatens to turn the law of civil commitment on its head.
¶ 43 This becomes apparent when we consider the legislative history of Arizona’s SVP statutes. Originally dubbed “Sexually Violent Predator” laws, these statutes were placed in Title 13, the Criminal Code. It was clearly the intent of the legislature to prolong the incarceration of sexual “predators” — to keep them off the streets — even after they had served full, mandatory sentences for their crimes. In a later transparent effort to skirt constitutional objections, the statutes were redenominated by lawmakers as “Sexually Violent Persons” laws, and moved to Title 36, where our civil commitment statutes reside. Significantly, however, the applicable standard of proof remained “beyond a reasonable doubt,” see A.R.S. § 36-3707, a unique feature of the criminal law. In contrast, the standard in a true civil commitment proceeding is only “clear and convincing.” A.R.S. § 36-540. Without belaboring the point, I believe that our SVP laws have a distinctly penal pedigree that should subject their use to close scrutiny.
¶ 44 I suppose only time will tell if “sexually violent persons” are getting adequate professional help, are being kept under non-punitive conditions, and are actually being released within reasonable periods of time. Like Justice Feldman, I remain skeptical, especially when I see the express reference to fiscal limitations on treatment set forth in A.R.S. §§ 36-3715 and -3716.
¶45 Finally, I cannot help but wonder where this novel approach to crime, punishment and public safety will lead us. How can we be sure, as the attorney general has argued, that the legislature will continue to view only sexual offenders as a special and unique class of criminals? If prosecutors are able to find mental health professionals willing to testify that people who commit repetitive assaults of a non-sexual nature have a mental abnormality predisposing them to such violent behavior, will the legislature pass laws to keep them incarcerated beyond their criminal sentences by the device of civil commitment? How about perpetrators of multiple domestic violence? Chronic drunk drivers? Violent drug offenders? What are the limits of this “end run” around the normal criminal justice process?
¶ 46 These and other difficult issues must await the future. For now, I share the court of appeals’ view that Hendricks requires a finding of “volitional impairment” and see nothing inappropriate in extending the An-ders protocol to these cases.