(concurring).
I accept the court’s decision to remand to the district court for reconsideration of whether Cedrick Ince is highly likely to reoffend and on the availability of a less restrictive alternative. I write separately to address the impossible task faced by *27those committed under Minnesota’s Sexual Psychopathic Personality (SPP) and Sexually Dangerous Person (SDP) statutes in attempting to show the existence of a less restrictive alternative to indeterminate confinement at a secure facility.
“Substantive due process forecloses the substitution of preventive detention schemes for the criminal justice system .... ” In re Linehan (Linehan III), 557 N.W.2d 171, 181 (Minn.1996), vacated sub nom. Linehan v. Minnesota, 522 U.S. 1011, 118 S.Ct. 596, 139 L.Ed.2d 486 (1997); see also In re Blodgett, 510 N.W.2d 910, 922 (Minn.1994) (Wahl, J., dissenting) (“[C]ommitment as a psychopathic personality under the [predecessor] statute is not a criminal conviction for which an individual can be imprisoned.”). The State cannot civilly commit “those whom [we] fear[],” Linehan III, 557 N.W.2d at 184, nor can “mere dangerousness ... justify civil commitment,” In re Linehan (Linehan IV), 594 N.W.2d 867, 872 (Minn.1999). Instead, commitment “is remedial ... for treatment purposes and ... not for purposes of preventive detention.” Call v. Gomez, 535 N.W.2d 312, 320 (Minn.1995).
In Linehan III, the State explained “the substantial commitment the legislature has made to creating adequate facilities and treatment programs for those [civilly] committed” as sexually dangerous or sexual psychopathic personalities. Linehan III, 557 N.W.2d at 187 (emphasis added). It is clear that the Legislature has failed to live up to that “commitment.” The Legislature has not created adequate facilities and treatment programs for those civilly committed as SDP or SPP. It is equally clear that we, as a court, have failed in our obligations to ensure that commitment as SPP and/or SDP is not merely a form of preventive detention.1
What the Legislature has created is a single, one-size-fits-all commitment system: 2 confinement in either one of two secure facilities. See Minn.Stat. § 253B.02, subd. 18a (2012) (“ ‘Secure treatment facility’ means ... the Minnesota sex offender program facility in Moose Lake and any portion of the Minnesota sex offender program operated ... at the Minnesota Security Hospital, ... not including] services or programs administered by the secure treatment facility outside a secure environment.”); Minn.Stat. *28§ 258B.185, subd. 1(d) (2012) (“[T]he court shall commit the patient to a secure treatment facility.... ”). The Legislature has provided no less restrictive alternatives. True, the person facing confinement in a secure facility can propose “a less restrictive treatment program ... that is consistent with the patient’s treatment needs and the requirements of public safety,” Minn.Stat. § 253B.185, subd. 1(d), but the absence of any State- or legislatively-approved facilities or programs makes this a hollow option.3 Of equal concern is the concentration of the State’s financial resources into only two secure facilities, which threatens to deprive those programs of a legitimate claim to treatment. See In re Senty-Haugen, 588 N.W.2d 266, 270 (Minn.1998) (Page, J., dissenting) (“To the extent that funding for people committed as SPP/SDP is only made available for their confinement in the most restrictive facilities available, it begins to look like the state is more interested in preventive detention than in treatment.”); Office of the Legislative Auditor, Evaluation Report: Civil Commitment of Sex Offenders 42 (2011), available at http://www.auditor.leg. state.mn.us/ped/pedrep/ccso.pdf (noting the statutory provision for a less restrictive alternative is “of virtually no practical use”).
The State’s failure to provide any option for the civilly committed sex offender other than confinement in a secure facility leaves Ince in a quandary. The experts testifying at the commitment hearing agreed that Ince — who had a support system in place, was attending treatment, and attained a prolonged period of sobriety— had adapted to intensive supervision in the community. Yet each expert also testified that only a secure facility would, in addition to treatment, adequately ensure public safety. It cannot be that the only option for nonpunitive, remedial treatment for someone who has demonstrated a measure of volitional control is confinement in a secure facility. See Linehan IV, 594 N.W.2d at 875-76 (explaining that civil commitment is justified by prior course of harmful behavior and a present disorder that does not allow a person to adequately control sexual impulses). Put differently, if civil commitment is not just for preventive detention, then the Legislature should provide treatment facilities and programs that provide a measure of public safety short of confinement.
. In our dissents in Linehan III, Justice Tom-ljanovich and I expressed concern that commitment under the SDP Act would result in impermissible preventive detention. 557 N.W.2d at 199 (Tomljanovich, J., dissenting); id. at 201 (Page, J., dissenting). The passage of time has proved our concern well-founded. In 2011, the Minnesota Office of the Legislative Auditor issued a report on the civil commitment of sex offenders. Office of the Legislative Auditor, Evaluation Report: Civil Commitment of Sex Offenders (2011) [hereinafter OLA Report ], available at http://www. auditor.leg.state.mn.us/ped/pedrep/ccso.pdf. The OLA Report indicates that in 1990 there were 30 or fewer civilly committed sex offenders in Minnesota. Id. at 4. By the year 2000, that number had increased to 149, and by 2010, the number had increased to 575. Id. It is estimated that currently there are approximately 698 sex offenders under commitment. Karsjens v. Jesson, No. 11-3659 (DWF/JJK), — F.Supp.2d -, - n. 4, 2014 WL 667971, at *1 n. 4 (D.Minn. Feb. 20, 2014). Moreover, it appears that only two committed sex offenders have ever been placed “ ‘on any kind of provisional discharge’ ” and that the State has never unconditionally released anyone committed to the Minnesota Sex Offender Program. Id. at -, 2014 WL 667971 at *1 (citation omitted).
. It is a system that, at times, appears penal and not at all remedial. See Karsjens, - F.Supp.2d at - & n. 12, 2014 WL 667971, at *4-5 & n. 12; OLA Report, supra, at 42 (explaining that Minnesota's commitment process results in an "all-or-nothing outcome” due to the lack of options other than secure commitment).
. Placing the burden on the proposed committee to provide his or her own less restrictive alternative to confinement in the State’s secure facilities creates its own set of due process problems.