Concurring Opinion
JACQUELINE COOK, Special Judge.I join the opinion of the Court, in full, and add these additional comments. I write separately to highlight concerns about the constitutionality of sec. 632.505 1 and the sexually violent predator (SVP) statutory scheme following its 2006 amendments. The concerns are not raised directly but may require resolution in future cases.
Both appellants argue before this Court that sec. 632.495 is unconstitutional because due process requires proof beyond a reasonable doubt for an indefinite involuntary civil commitment. Sec. 632.495 was amended by the legislature in 2006 by changing the burden of proof necessary to find that an individual is a sexually violent predator from beyond a reasonable doubt to clear and convincing evidence.
The question of’Whether an indefinite involuntary civil commitment may be premised on a finding of clear and convincing evidence was addressed in Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). The Court concluded that proof beyond a reasonable doubt was not required, but proof by preponderance of the evidence fell short of satisfying that burden. The Court, therefore, held that a clear and convincing standard of proof met the constitutional requirements of the Fourteenth Amendment in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital. Id. at 430-433, 99 S.Ct. 1804. See, e.g., Murrell v. State, 215 S.W.3d 96, 104 (Mo. banc 2007)
In the body of both appellants’ arguments as to the constitutionality of sec. 632.495, they argue that the creation of sec. 632.505 — the section discussing the conditional release of sexual violent predators — implicates the constitutionality of sec. 632.495 because conditional release may mean a loss of liberty for a lifetime. However, the appellants do not raise the constitutionality of sec. 632.505 or the constitutionally problematic nature of the entire SVP statutory scheme. This Court, of course, should only address the issues presented in the points relied on. State v. Brookshire, 325 S.W.2d 497, 500 (Mo. banc 1959). A party cannot expand the issues presented before a court for review simply by discussing issues within the body of the argument. Pruellage v. De Seaton Corp., 380 S.W.2d 403, 405 (Mo. banc 1964). The appellants sought review of the constitutionality of the clear and convincing stan*589dard of proof for an indefinite civil commitment. That question is resolved by this Court’s principal opinion.
This Court previously has found that the legislature intended the SVP statutes to be civil in nature. Elliott v. State, 215 S.W.3d 88, 93 (Mo. bane 2007). A court will reject the legislature’s manifest intent only where a party challenging the act provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the state’s intention. Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).
In the cases presently before the Court, the appellants fail to address the legislative history of the SVP act or other factors necessary to evaluate the civil or criminal nature of the statutes. See, e.g., Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). The appellants, therefore, do not meet the “clearest proof’ standard necessary for this Court to find that the SVP statutory scheme was so punitive in nature as to warrant the burden of proof required in criminal cases — beyond a reasonable doubt.
While the constitutionality of sec. 632.505 and the constitutionality of the entire statutory scheme of the SVP statutes may not be properly before the Court today, the concerns raised by appellants regarding the 2006 amendments, alluded to both in them briefs and in their arguments, may require future review by this Court when squarely presented.
A state may enact SVP statutes providing for the involuntary civil commitment of dangerous persons “provided the commitment takes place pursuant to proper procedures and evidentiary standards.” Murrell, 215 S.W.3d at 103-104, (citing Kansas v. Hendricks, 521 U.S. at 357, 117 S.Ct. 2072; Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992)). In O’Connor v. Donaldson, the Supreme Court held that a finding of mental illness alone will not justify locking up a person against his will for an indefinite period of time. 422 U.S. 563, 575, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). “Rather due process requires that a person be both mentally ill and dangerous in order to be civilly committed; the absence of either characteristic renders involuntary confinement unconstitutional.” Murrell, 215 S.W.3d at 104 (citing Foucha v. Louisiana, 504 U.S. at 77, 112 S.Ct. 1780; Kansas v. Hendricks, 521 U.S. at 358, 117 S.Ct. 2072). “The individual must not only be dangerous at the time of, but also during, commitment, for ‘if his involuntary confinement was initially permissible, it could not constitutionally continue after a basis no longer existed.’” Murrell, 215 S.W.3d at 104 (quoting O’Connor v. Donaldson, 422 U.S. at 575, 95 S.Ct. 2486).
Appellants contend that sec. 632.505, the conditional release section, provides for loss of liberty and as such violates due process. In fact, loss of liberty may be permissible if the person has a mental illness or mental abnormality and poses a danger. See Seling v. Young, 531 U.S. 250, 261-262, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001) (citing Kansas v. Hendricks, 521 U.S. at 366, 117 S.Ct. 2072 (no federal constitutional bar to civil commitment of individuals with untreatable conditions because the state has an interest in protecting the public from dangerous individuals with treatable as well as untreatable conditions)). However, while loss of liberty may be permissible, sec. 632.505 may pose due process concerns because: (1) the statute provides for a form of commitment or confinement, albeit conditional, without the requisite finding of dangerousness; and (2) *590it fails to provide sufficient procedural due process protections.
Sec. 632.505.1 provides that:
Upon determination by a court or jury that the person’s mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, the court shall place the person on conditional release pursuant to the terms of this section. The primary purpose of conditional release is to provide outpatient treatment and monitoring to prevent the person’s condition from deteriorating to the degree that the person would need to be returned to a secure facility designated by the director of the department of mental health.
Section 632.505.5 states that a person conditionally released “remains under the control, care and treatment of the department of mental health.” A restraint of liberty, continued without opportunity of review or the possibility of unconditional release or discharge, would raise serious due process concerns. Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (“It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection”). Conditional release, which mandates that an individual still is committed to the department of mental health, constitutes a restraint of liberty that requires due process protections.
Missouri’s SVP statute requires a finding that, to be committed, the individual: (1) has a history of past sexually violent behavior; (2) a mental abnormality; and (3) the abnormality creates a danger to others if the person is not incapacitated. Sec. 632.480(5); Murrell, 215 S.W.3d at 105. Section 632.505 describes the requirements for conditional release from that commitment: Once a court or jury determines that “the person is not likely to commit acts of sexual violence if released,” the court shall place the person on conditional release pursuant to the terms of the statute. However, the finding that a person no longer poses a danger does not result in complete restoration of that person’s liberty. Once the person no longer poses a danger, the person shall be conditionally released. Those conditions, which include “outpatient treatment and monitoring,” are, in fact, a form of moderated commitment. If commitment is predicated on a finding of dangerousness, once the person is found to be no longer dangerous, due process requires that the person be released — fully released — from commitment. After a finding that the person is not dangerous, such commitment, even if it is under a less restrictive setting, violates due process. Murrell, 215 S.W.3d at 104; Care and Treatment of Coffman, 225 S.W.3d 439, 446 (Mo. banc 2007); see also Kansas v. Hendricks, 521 U.S. at 371, 117 S.Ct. 2072 (J. Kennedy, concurring) (noting that if civil confinement becomes a mechanism for general deterrence, its constitutionality may be invalidated); O’Connor v. Donaldson, 422 U.S. at 574, 95 S.Ct. 2486 (mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty).
This Court previously has found, reviewing the SVP statutory scheme prior to 2006 amendments, that a person. is not committed as an SVP indefinitely because the SVP statutory scheme provided for “a current examination of the person’s mental condition made once every year by the director of the department of mental health or designee.” Sec. 632.498. If the director found that the person’s mental abnormality had so changed that the person was not likely to commit acts of sexual violence if released, the committed person could petition the court for release. Even if the director did not determine that the *591person qualified for release, the person committed still could petition the court for discharge. Schottel v. State, 159 S.W.3d 886, 839 (Mo. banc 2005); sec. 632.498, 632.501, RSMo 2000. Specifically, sec. 632.498.1, RSMo 2000, required that the court shall conduct an annual review of the status of the committed person. This Court, citing Kansas v. Hendricks, has noted that the duration of confinement is linked to the stated purposes of commitment, namely to hold the person until his mental abnormality no longer causes him to be a threat to others, Murrell, 215 S.W.3d at 105; that the annual review mechanism “ensures involuntary confinement that was initially permissible will no longer continue after the basis for it no longer exists.” Id.
The 2006 amendments to the statutory scheme, however, do away with the annual review when conditional release is implemented. Sec. 632.498.1 now states that “[t]he court shall conduct an annual review of the status of the committed person. The court shall not conduct an annual review of a person’s status if he or she has been conditionally released pursuant to sec. 632.505.” Further statutory safeguards to ensure that a person is no longer involuntarily committed if the requirements of mental illness or abnormality and dangerousness do not exist have been removed. Prior to the 2006 amendments, the committed person was provided an annual written notice of the person’s right to petition the court for release over the director’s objection. Sec. 632.498, RSMo 2000. The 2006 amendment specifically eliminated from the notice requirements the committed person who has been conditionally released. Sec. 632.498.2.
Prior to the 2006 amendments, a person confined under the SVP statutes could be discharged from confinement altogether. Sec. 632.498, RSMo 2000. The 2006 amendments provide that even if the court or jury finds that the person’s mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, the person “shall be conditionally released as provided in sec. 632.505.” A review of the statutory scheme following the 2006 amendments casts doubts on whether an unconditional release or discharge is ever available to a person confined under the SVP statutes. The failure to provide a person committed under the SVP statutes a procedure by which to seek unconditional release or discharge may very well violate the Due Process Clause. Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (the right to procedural due process is absolute); Cf. Seling v. Young, 531 U.S. at 255, 121 S.Ct. 727 (State of Washington SVP statutory scheme, which included conditional release as a less restrictive alternative to secured confinement, upheld when conditional release was subject to annual review until person unconditionally released and where person still had right to seek discharge from commitment); Kansas v. Hendricks, 521 U.S. at 366, 117 S.Ct. 2072 (Kansas SVP Act constitutional when a confined person may be immediately released from confinement if adjudged to be safe at large); Care and Treatment of Coffman, 225 S.W.3d at 446 (if committed person can demonstrate he is no longer likely to commit sexually violent offenses, he is entitled to release).
Lastly, if called to consider the impact the indefinite conditional release statute has had on the entire SVP statutory scheme, this Court may be compelled to find that such an indefinite restraint of liberty has made the SVP act so punitive in purpose or effect that it no longer can be considered civil in nature — requiring a higher burden of proof.
*592While I concur with the Court’s decision based upon the question squarely placed before it, I believe that a specific challenge to the constitutionality of sec. 632.505, which appears to provide for an indefinite restraint of liberty without a finding of dangerousness or a procedure by which to challenge such indefinite restraint of liberty, may require a different result.
. All statutory references are to RSMO 2000, unless otherwise noted.