Dissenting Opinion
RICHARD B. TEITELMAN, Judge.I respectfully dissent. In In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), the United States Supreme Court determined that the gradual transition of juvenile delinquency proceedings into a process that was tantamount to a traditional criminal proceeding warranted the application of criminal due process safeguards in juvenile courts. Id. at 365-366, 90 S.Ct. 1068. The same transition that occurred in juvenile delinquency proceedings now has occurred in Missouri’s SVP law. Regardless of the state’s characterization of the SVP law as a civil commitment proceeding, the text of the law and the reality of its application reveal a process whereby the state exercises the power to impose a permanent, punitive restraint on individual liberty. Consequently, I would hold that due process requires the exercise of this power to be conditioned upon proof beyond a reasonable doubt of each of the statutory prerequisites for commitment.
As stated in the majority opinion, the United States Supreme Court held in Addington v. Texas, 441 U.S. 418, 433, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), that a clear and convincing burden of proof constitutionally was permissible in a civil proceeding to commit an individual indefinitely and involuntarily to a state mental hospital. The Court, however, did not hold that the clear and convincing burden of proof would be sufficient in every civil commitment proceeding. Instead, the Court’s holding was premised on the following propositions: (1) civil commitment is not punitive; (2) the beyond-a-reasonable-doubt standard historically has been reserved for criminal cases; (3) ongoing review of an individual’s condition provides continuous opportunities to correct an erroneous commitment decision; and (4) the beyond-a-reasonable-doubt standard is not workable in the civil commitment context. These propositions applied to the facts of Addington but do not apply to the text of the SVP law or the reality of its application.
The first and primary proposition in Ad-dington was that the civil commitment statute at issue was remedial, not punitive. Id. at 428, 99 S.Ct. 1804. The same cannot be said of Missouri’s SVP law.
Section 632.505.1 provides for conditional release “[u]pon 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.... ” Section 632.505.5 provides that a conditionally released person “remains under the control, care and treatment of the department of mental health.” The net result of these provisions is that an individual who is rehabilitated successfully is committed permanently to the department of mental health. If the purpose of the SVP law is purely remedial, then successful remediation of the mental condition that caused the commitment should result in an opportunity for an unconditional release. Once the remedial purpose has been fulfilled, the continued deprivation of individual liberty amounts to nothing but a punitive sanction. Unlike Ad-dington, the appellants in this case forever will be subject to state oversight, even if the state determines that neither man poses a danger to others.
*593The second proposition in Addington was that the beyond-a-reasonable-doubt standard historically has been reserved for criminal cases. However, in the three decades since Addington was decided, a number of states have chosen to employ the beyond-a-reasonable-doubt standard in SVP statutes. Prior to the enactment of section 632.505 in 2006, Missouri also required proof beyond a reasonable doubt. The relatively recent advent of SVP statutes throughout the nation has rendered the historical observation of Addington less true today than it was when the case was decided in 1979.
The third proposition in Addington was the Court’s recognition that there would be ongoing review of the individual’s mental condition. Id. at 428, 99 S.Ct. 1804. If the committed individual recovered, he was entitled to immediate release. Id. at 422, 99 S.Ct. 1804. Like the commitment statute in Addington, the SVP law provides opportunities for ongoing review of an individual’s condition. Unlike the statute in Addington, section 632.505 does not permit an unconditional release upon proof of successful treatment of the mental condition that caused the commitment in the first place. Moreover, as the state admitted in oral argument, only a miniscule percentage of those committed pursuant to the SVP law ever have been released as a result of the ongoing treatment and evaluation process. Both the plain language and actual administration of the SVP law lead to the inescapable conclusion that the initial commitment decision under the SVP law is effectively final. The state should not be able to deprive forever the individual liberty of its citizens without proving beyond a reasonable doubt the necessity of doing so.
The final proposition underlying Ad-dington was the Court’s concern that the beyond-a-reasonable-doubt burden of proof would prove unworkable in civil commitment proceedings because of the “lack of certainty and fallibility” of diagnosing mental illnesses. Id. at 429, 99 S.Ct. 1804. Experience has shown this concern to be unfounded. From 1999 through 2006, Missouri successfully proved beyond-a-reasonable-doubt the necessity of committing a number of individuals under the SVP act. See In re Care and Treatment of Cokes v. State, 183 S.W.3d 281 (Mo.App.2005); In re Care and Treatment of Spencer, 171 S.W.3d 813 (Mo.App.2005); In re Care and Treatment of Collins, 140 S.W.3d 121 (Mo.App.2004). Actual practice in Missouri and other states has demonstrated that the beyond-a-reasonable-doubt standard does not impose an unreasonable barrier to the civil commitment of dangerous individuals.
As the foregoing discussion demonstrates, the propositions underlying the holding in Addington do not apply to Missouri’s SVP law. Addington is distinguishable and does not foreclose appellants’ arguments.1 More importantly, both the text and administration of the SVP law reveals a process that is, in substantial part, punitive in nature. Given the punitive aspects of the SVP law and the significant distinctions between this case and Addington, I would hold that the SVP law is unconstitutional insofar as it permits the state to commit an individual permanently to the care, custody and control of the department of mental health without hav-*594mg to prove the prerequisites to commitment beyond a reasonable doubt.
. In remanding the case to the state court, the Addington court specifically left the “determination of the precise burden equal to or greater than the clear and convincing standard ... to the Texas Supreme Court.” Id. at 433, 99 S.Ct. 1804. This language specifically indicates that the particulars of a civil commitment statute may require some burden of proof that is more stringent than clear and convincing.