Matter of Linehan

TOMLJANOVICH, Justice

(dissenting).

The case before us illustrates better than most that the judicial power is often difficult in its exercise. * * * The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result.

Texas v. Johnson, 491 U.S. 397, 420, 421, 109 S.Ct. 2533, 2548, 105 L.Ed.2d 342 (1989) (Kennedy, J., concurring).

By affirming the trial court’s civil commitment of Dennis Darol Linehan under the Sexually Dangerous Person’s Act (“SDP Act”), this court today chooses to make the easy decision. Not because it is right, not because it is compelled by the constitutions of either the United States or Minnesota, but because it is convenient. The United States Supreme Court in its affirmation of Pearson asserted that it was this court’s duty to “protect appellant in every constitutional right he possesses.” State ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 277, 60 S.Ct. 523, 527, 84 L.Ed. 744 (1940), aff'g 205 Minn. 545, 287 N.W. 297 (Minn.1939). Likewise, the state admitted during oral ar*192gument in the case at bar that “it is the function of the courts” to provide safeguards against the state’s improper use of civil commitment as a constitutionally invalid form of preventive detention.1 Yet today this court not only shirks its duty to uphold appellant’s right to substantive due process as mandated by the Supreme Court, it fails to provide a constitutionally necessary check upon the state’s restriction of appellant’s liberty. Even worse, the majority reaches this conclusion by relying almost entirely upon In re Blodgett, 510 N.W.2d 910 (Minn.1994), cert. denied, — U.S. —, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994), a case decided eight months before passage of the SDP Act, and six months before this court found that the appellant did not fit within the statute upheld in Blodgett. In re Linehan, 518 N.W.2d 609 (Minn.1994), reh’g denied, (Aug. 15, 1994) (Linehan I). And what is the basis upon which the majority reaches this conclusion? It is the fear of Dennis Darol Linehan and what he might do upon his release.

Before reaching the constitutional issue of substantive due process, which by itself invalidates the application of the SDP Act to the appellant, it is important to clarify that this court’s prior decisions regarding the Psychopathic Personality Commitment Act (“PP Act”) do not mandate, as the majority would have us believe, .today’s holding regarding the SDP Act. If anything, this court’s holdings in Pearson and Blodgett require us to conclude that the SDP Act is unconstitutional as applied to the appellant.

I. Precedent

It all started in 1939 when the legislature passed the PP Act after recognizing a “need for legislation to deal with sex offenders and a belief, shared in by the medical authorities and others, that sex crimes are committed because of a weakness of the will as well as of the intellect.” State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 545, 287 N.W. 297, 298 (1939), aff;d, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940). The statute effectively allowed the state to civilly commit those persons found to have a “psychopathic personality,” which the statute defined as:

[T]he existence in any person of such conditions of emotional instability, or impulsiveness of behavior, or lack of customary standards of good judgment, or failure to appreciate the consequences of his acts, or a combination of any such conditions, as to render such person irresponsible for his conduct with respect to sexual matters and thereby dangerous to other persons.

Psychopathic Personality Act, 1939 Minn. Laws, ch. 369 (codified as amended at Minn. Stat. § 526.09-526.10 (1992)). Upon a constitutional challenge for vagueness, this court stated that the statute “was imperfectly drawn,” and therefore redefined “psychopathic personality” as including only those persons who:

by a habitual course of misconduct in sexual matters, have evidenced an utter lack of power to control their sexual impulses and who, as a result, are likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desire.

Pearson, 205 Minn, at 555, 287 N.W. at 302 (emphasis added).2 Since that time, courts have considered the “utter lack of power to control their sexual impulses” to be a necessary criterion for civil commitment under the PP Act. E.g., Pearson, 309 U.S. at 273, 60 *193S.Ct. at 525 (“[W]e must take the statute as though it read precisely as the highest court of the State has interpreted it.”); Linehan I, 518 N.W.2d at 613 (stating that “testimony * * * fails to support the trial court’s finding that appellant exhibits an utter lack of control over his sexual impulses”); see also Minn.Stat. § 253B.02, subd. 18a (1994) (incorporating the “utter lack of power to control sexual impulses” language into the PP Act).

The next significant case in which this court considered the constitutionality of the PP Act was In re Blodgett, only this time, the question was whether the statute as interpreted in Pearson remained valid in light of the Supreme Court’s holding in Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). Blodgett, 510 N.W.2d at 914. In Foucha, the Supreme Court held that Louisiana could not continue to hold a presently sane insanity acquittee without violating his fundamental right to liberty. Fou-cha, 504 U.S. at 78-83, 112 S.Ct. at 1784^87. More particularly, the Court ruled that a state could constitutionally deprive an individual of his or her fundamental right to liberty under only three circumstances: (a) imprisonment of convicted criminals for the purpose of deterrence and retribution; (b) confinement of persons shown to be mentally 111 and dangerous by clear and convincing evidence; and (c) detention of persons who pose a danger to others or to the community, and then only in extremely limited circumstances such as pretrial detention. Id. at 80, 112 S.Ct. at 1785-86. The appellant in Blod-gett argued that his commitment was unconstitutional under Foucha because it did not fit within the second of Foucha’s three circumstances.3 Although it was conceded that he fit within the statute’s definition of psychopathic personality,4 the appellant argued he was not mentally ill.5 Blodgett, 510 N.W.2d at 914. This court did not agree, and held that Blodgett’s commitment under the PP Act was constitutionally consistent with Foucha because “[wjhatever the explanation or label, the ‘psychopathic personality’ is an identifiable and documentable violent sexually deviant condition or disorder.” Id. at 915. In other words, this court held that the criteria required by Pearson to prove a “psychopathic personality” were sufficiently similar to those criteria required under Fou-cha to prove mental illness. Id. (“The problem is not what medical label best fits the statutory criteria, but whether these criteria may, constitutionally, warrant civil commitment.”) What was essential to this court’s holding in Blodgett, and what the majority today fails to recognize, is that the criteria used to prove that the appellant in Blodgett fit within the restraints of Foucha necessarily included the finding that Blodgett had an uncontrollable sexual impulse dangerous to others (in other words, a psychopathic personality). Id. at 915 (“[Ojur legislature has provided for commitment of the ‘psychopathic personality’ who, because of an uncontrollable sexual impulse, is dangerous to the public.”). Although the majority today would have us believe that Blodgett stood for the proposition that appellant’s diagnoses of APD would be enough to satisfy the mental-illness requirement of Foucha, the words of Blodgett negate this conclusion:

A person committed as a psychopathic personality may petition the Commissioner of Human Services at any time for a transfer to an open hospital or for a provisional discharge to a community or other residential treatment facility, or for a temporary pass. These relaxations of security hospital confinement provide an opportunity (and an incentive) for the committed person to demonstrate that he has mastered his sexual impulses and is ready to take his place in society.

Id. at 916 (emphasis added). In other words, a person committed as a psychopathic personality who learns to control his sexual *194impulses no longer requires civil commitment. In fact, this was the very situation in Linehan I, when this court held that Linehan did not fit within the statute’s definition of “psychopathic personality” precisely because the state failed to prove he was unable to control his sexual impulses. Linehan I, 518 N.W.2d at 614 (“Because we hold that the county did not prove the utter lack of contrOl/uncontrollable element of the Pearson test, it is unnecessary to address whether there is clear and convincing evidence that appellant was likely to engage in future dangerous behavior.”). Although Linehan, like Blodgett, was diagnosed with APD, this court found that the state failed to prove he was utterly unable to control his sexual desires. Id. Consequently this court held that Line-han was different from Blodgett and could not be committed as a psychopathic personality.6 Id.

Of course that was not the end of In re Linehan. The legislature subsequently passed the SDP Act and provided civil commitment for those found to be sexually dangerous persons (“SDP”). See Sexually Dangerous Persons Act of August 31, 1994, ch. 1, art. 1, § 3-4, 1995 Minn. Laws 1st Spec. Sess. 5-7 (1994), codified at Minn.Stat. §§ 253B.02, 253B.185 (1994). Under the new law, the state needed to show that the person has engaged in a course of harmful sexual conduct, and that the person has manifested a “sexual, personality, or other mental disorder or dysfunction, and as a result, is likely to engage in acts of harmful sexual conduct.” Minn.Stat. § 253B.02, subd. 18b(a) (1994). The law additionally provides that for the purposes of proving a SDP, the state need not show that the person has an inability to control his or her sexual impulse's. Minn. Stat. § 253B.02, subd. 18b(b) (1994).

What the legislature in essence did was throw out the “utter lack of power to control their sexual impulses” requirement: a requirement this court created to uphold the PP Act against an attack for vagueness in Pearson; a requirement this court relied upon to uphold the PP Act against an attack for substantive due process, equal protection, ex post facto and double jeopardy violations in Blodgett; and a requirement this court cited to release the committee in Linehan I. Yet today this court says the “utterly unable to control” element is of “no principled and constitutionally significant distinction between Linehan’s commitment under the SDP Act and the commitments of other sexual predators upheld under the PP Act.” Ante, at 180. Furthermore, the majority states that Blodgett stands for the proposition that APD alone is “a valid mental health basis for commitment” and that substantive due process does not preclude “milder forms of APD as the mental health basis for civil commitment.” Ante, at 182. Of course the majority fails to recognize that Blodgett involved a psychopathic personality and does not require this court to hold that APD alone is a sufficient mental-health basis for commitment.

That is why it is disingenuous, and perhaps a little too convenient, to assert, as the majority does, “that under Blodgett the SDP Act is sufficiently narrow to satisfy strict scrutiny as applied to Linehan.” Ante, at 182. This court in Blodgett upheld the commitment of the appellant only because he had a psychopathic personality, in other words, because he had an utter lack of power to control his sexual impulses. Despite the majority’s holding that Blodgett stands for the proposition that APD alone fits within the mental-illness requirement of Foucha, the fact remains that if Blodgett stood for such a proposition, it would have been contrary to rulings by the U.S. Supreme Court. Foucha, 504 U.S. at 82-83, 112 S.Ct. at 1786-87 (stating that substantive due process does not allow a state to civilly commit a person with “a personality disorder that may lead to criminal conduct” (emphasis added)).7 This *195court merely asserted in Blodgett that it would not embroil itself in a semantic argument based upon labels, and that it would analyze the appellant against the criteria used to identify a mental illness in Foucha. But now this court is using the label “antisocial personality disorder” to conclude that Linehan fits within Foucha’s definition of mental illness.

In the absence of evidence to the contrary, we accept the legislature’s and the American Psychiatric Association’s determination that APD is an identifiable mental disorder that helps explain behavior.

Ante, at 185 (emphasis added). Although the majority is wont to admit as much, such a holding necessarily negates Pearson and grossly expands Blodgett. Even more importantly, it erodes the protections of substantive due process as established by Fou-cha.

II. Substantive due process

Foucha stands for the proposition that a state cannot deprive a person of his or her liberty simply because that person is. dangerous. Put another way, the Due Process Clause of the Constitution prohibits us as a society from locking up persons simply because we fear them. It matters not if our fear is based upon a rational assessment of the person’s likelihood to commit future bad acts, the fact remains that the Supreme Court has said we cannot remove a person from society for the sole purpose of preventing the future bad acts, even if the future bad acts are almost certain to occur. That is the baseline from which this court is required to begin its analysis of the SDP Act.

To that end, the majority correctly admits that the SDP Act deprives an individual of the fundamental right to liberty and therefore is subject to strict scrutiny. The majority also correctly adopts the form of strict scrutiny that asks whether the action is narrowly tailored to serve a compelling state interest. The majority then recognizes that the state has two compelling interests in this case: 1) to ensure public safety from sexual assaults under the police powers and 2) to provide care and treatment of the mentally disordered. What the majority fails to recognize, however, is that the validity of the state’s action will vary depending upon which compelling interest the state is trying to serve.

If the state is attempting to serve only the first compelling interest, in other words it is trying only to protect the public from future sexual assaults, it cannot deprive a person of his liberty without first obtaining a criminal conviction for past acts. Foucha, 504 U.S. at 77-78,112 S.Ct. at 1784 (holding that dangerousness alone is not sufficient to civilly commit a person); Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) (holding that a state could not continue to hold a person incompetent to stand trial); Baxstrom v. Herald, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966) (holding that a state cannot continue to deprive a convicted criminal nearing the end of his penal term of his liberty without first committing him civilly ). If, however, the state is attempting to serve both the first and second compelling interests, in other words, it is attempting to provide care and treatment for a mentally ill person who poses a threat to himself and others, it can deprive a person of his liberty once it demonstrates by clear and convincing evidence that the person is both mentally ill and dangerous. Foucha, 504 U.S. at 77-78, 112 S.Ct. at 1784; Jones v. United States, 463 U.S. 354, 369, 103 S.Ct. 3043, 3052, 77 L.Ed.2d 694 (1983); Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); see also Young v. Weston, 898 F.Supp. 744, 748-49 (W.D.Wash.1995) (listing circumstances in which the Supreme Court has allowed incarceration for nonpunitive reasons); State v. Randall, 192 Wis.2d 800, 532 N.W.2d 94, 100-01 (1995) (stating that Supreme Court has held that states can treat civil and criminal committees differently). The majority in Foucha put it this way:

A State, pursuant to its police power, may of course imprison convicted criminals for the purposes of deterrence and retribu*196tion. But there are constitutional limitations' on the conduct that a State may criminalize. Here the State has no such punitive interests. As Foucha was not convicted, he may not be punished. * * ⅜
The State may also confine a mentally ill person if it shows ‘by clear and convincing evidence that the individual is mentally ill and dangerous.’ Here, the state has not carried that burden; indeed, the state does not claim that Foucha is now mentally ill.

Foucha, 504 U.S. at 80, 112 S.Ct. at 1785 (citations omitted) (emphasis added). Although the Supreme' Court was divided in Foucha, it was unanimous in concluding that strict scrutiny requires a state’s action to be narrowly tailored to the particular compelling interest at stake. Justice O’Connor in her concurrence stated “that acquittees could not be confined as mental patients absent some medical justification for doing so; in such a case the necessary connection between the natv/re and puvposes of confinement would be absent.” Id. at 88, 112 S.Ct. at 1789-90 (O’Connor, J., concurring) (emphasis added). Justice Kennedy, in fact, based his entire dissent on the fact that the validity of a state’s actions will differ depending upon whether it is acting in a criminal or civil context.

The criminal law defines a discrete category of conduct for which society has reserved its greatest opprobrium and strictest sanctions; past or future dangerousness, as ascertained or predicted in civil proceedings, is different in kind. * * * In the civil context, the State acts in large part on the basis of its parens patriae power to protect and provide for an ill individual, while in the criminal context, the State acts to ensure the public safety.

Id. at 95-96, 112 S.Ct. at 1794 (Kennedy, J., dissenting). And finally, Justice Thomas stated that “there is a real and legitimate distinction between insanity acquittees and civil committees that justifies procedural disparities.” Id. at 108, 112 S.Ct. at 1800 (Thomas, J., dissenting). Although Justice Thomas maintained that “freedom from bodily restraint” did not constitute a fundamental interest that merited strict scrutiny, he did admit that under such a test “[cjivil commitment as we know it would almost certainly be unconstitutional; only in the rarest of circumstances will a State be able to show a ‘compelling interest,’ and one that can be served in no other way, in involuntarily institutionalizing a person.” Id. at 122, 112 S.Ct. at 1807-08 (Thomás, J., dissenting). In summary, the court concluded that civil commitment of a non-mentally ill but dangerous person would be:

only a step away from substituting confinements for dangerousness for our present system which, with only narrow exceptions and aside from permissible confinements for mental illness, incarcerates only those who are proved beyond reasonable doubt to have violated a criminal law.

Id. at 83, 112 S.Ct. at 1786 (emphasis added).

Likewise, this court relied upon a compelling interest in Blodgett that encompassed more than mere protection.

Here the compelling government interest is the protection of members of the public from persons who have an uncontrollable impulse to sexually assault.

Blodgett, 510 N.W.2d at 914 (emphasis added). This court went on to say that “[s]o long as civil commitment is programmed to provide treatment and periodic review, due process is provided,” Id. at 916 (emphasis added). The state in Blodgett asserted its compelling interest to be protection of society from those persons tmable to control their impulses precisely because the Supreme Court in Foucha made clear that a civil commitment would not be narrowly tailored to the compelling government interest of protecting society alone.

Addington v. Texas, 441 U.S. 418 [99 S.Ct. 1804, 60 L.Ed.2d 323] (1979), held that to commit an individual to a mental institution in a civil proceeding, the State is required by the Due Process Clause to prove by clear and convincing evidence the two statutory preconditions to commitment: that the person sought to be committed is mentally ill and that he requires hospitalization for his own welfare and protection of others.

*197Foucha, 504 U.S. at 75-76, 112 S.Ct. at 1783 (emphasis added).

The bottom line is that a state cannot incarcerate a person simply because it fears the person’s future acts. It can, however, civilly commit a person whom it fears, so long as the commitment is narrowly tailored to the state’s additional compelling interest in treating mentally ill people. See Addington, 441 U.S. at 429, 99 S.Ct. at 1811 (stating that the key question in civil commitment is “[w]hether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy ” (emphasis added)). The difference, though subtle, is essential to the disposition of this case. Foucha allows a state to involuntarily deprive a dangerous person of his or her liberty only when it does so for the purpose of treating that person. And that is why the majority misses the mark in holding that the SDP Act is narrowly tailored to the only compelling government interest asserted by the state in this case — protecting the public from sexual assault. As the majority stated:

[T]he SDP Act is an attempt to protect the public by treating sexual predators even more dangerous than those reached by the PP Act — the mentally disordered who retain enough control to ‘plan, wait, and delay the indulgence of their maladies until presented with a higher probability of success.’ And as the court of appeals recognized, the mental disorder requirement in the SDP Act serves the state’s interest in public safety by aiding the prediction of dangerousness.

Ante, at 182. We concede that the majority’s reliance on public safety alone would be sufficient to incarcerate Linehan for past criminal acts.8 Because the state already has punished Linehan for his past criminal acts, however, Foucha will not allow it to rely upon public safety alone to incarcerate him for predicted future acts. Instead, the state must show that his civil commitment is necessary to the additional compelling government interest of providing care and treatment of the mentally ill.9

Before going any further, it is revealing to note that the state did not even bother to argue that its compelling government interest in passing the SDP Act was to provide treatment for Dennis Linehan or any other subsequent committee. And for that, the state deserves credit for its honesty. Although the statute provides a treatment mechanism, it is clear given the following circumstances regarding the bill’s passage that the actual government interest was to lock up sexually dangerous persons in general and Dennis Linehan in particular.

Less than one week after this court ruled that Linehan could not be committed under the PP Act, the speaker of the house called for a meeting and was quoted as saying, “The prospect of these predators being released is frightening, especially for the women of Minnesota.” Donna Halvorsen, Sex Predators’ Status Sparks Insecurity; Commitment Law Appears Frayed, Star Trib., July 9, 1994, at IB. Approximately five weeks later, the attorney general proposed legislation that he said would keep sexual predators “locked up.” Robert Whereatt, Laws Proposed to Keep Sex Predators off Streets, Star Trib., Aug. 12,1994, at 1A. The Governor, who at the same news conference announced he would call for a special legislative session, said, “By all accounts, these two men10 remain a danger to the public.” Id.

*198After this court denied the state’s petition 'for rehearing in Linehan I, the governor announced that the state would move Line-han to an old staff residence just outside the prison and keep him under constant surveillance. Paul Gustafson & Robert Whereatt, Rapist/Murderer Wins Release — and Tight Surveillance, Star Trib., Aug. 16, 1994, at 1A. When Linehan’s attorney said the treatment was “appalling,” the governor responded by saying, “I’d much rather make a mistake on the side of public safety than be overwhelmingly concerned with some attorney’s perception of the civil rights of Mr. Linehan.” Id. The Ramsey County prosecutor, meanwhile, was quoted by USA Today as saying, “These are dangerous people and we’ve got to protect the women and children in our communities.” Mimi Hall, A Furor Breivs over Release of Sex Offenders, USA Today, Aug. 17, 1994, at 3A.

Just eight days before statewide primary elections, the governor officially called for a one-day, one-bill special legislative session. Robert Whereatt, Legislators, Carlson Agree to Session; Ground Rules Set With Goal of Avoiding Partisanship, Star Trib., Aug. 24, 1994, at IB. The legislature convened one week later and in just 1 hour, 37 minutes passed the SDP Act by a 65-0 margin in the senate and a 133-0 margin in the house. Donna Halvorsen & Robert Whereatt, Sexual Predator Bill OK’d, Signed, Star Trib., Sept. 1, 1994, at 1A. Immediately prior to the session, the bill’s drafters had told their colleagues to avoid speaking about Linehan specifically because, “Whatever we say on the floor will be used against us. * * * It’s going to be used to challenge the bill.” Id.

By themselves, these circumstances are enough to render this rather transparent effort at preventive detention unconstitutional.11 But we assert in the alternative that the SDP Act is not sufficiently narrow to serve even the government’s additional compelling interest in providing care and treatment of the mentally ill. Once again, the foundation for this conclusion is Foucha.

[T]he State asserts that because Foucha once committed a criminal act and now has an antisocial personality that sometimes leads to aggressive conduct, a disorder for which there is no effective treatment, he may be held indefinitely. This rationale would permit the State to hold indefinitely any other insanity acquittee not mentally ill who could be shown to have a personality disorder that may lead to criminal conduct. The same would be true of any convicted criminal, even though he has completed his prison term.

Foucha, 504 U.S. at 82-83, 112 S.Ct. at 1787 (emphasis added). Although Justice O’Con-nor’s concurrence intimates that something less than a bona' fide mental illness would suffice, the plurality in Foucha could not be more clear: A state cannot civilly commit a person who is dangerous and has a “personality disorder.” Foucha, 504 U.S. at 82-83, 112 S.Ct. at 1787 (explaining that a state cannot civilly commit a person who is dangerous and has either an “antisocial personality” or “a personality disorder”). The person must be both dangerous and mentally ill. It is debatable whether Blodgett’s holding that a person who has a psychopathic personality fits within the definition of mental illness as asserted in Foucha,12 but it could not be more clear that a person who has only an antisocial “personality disorder” does not fit within the definition of mental illness as asserted in Foucha.

This limitation is essential. Not because persons with “personality disorders” are any less dangerous than those who have recognized mental illnesses,13 but because the very *199essence of the state’s constitutionally required compelling interest in civilly committing a person is treatment of the mentally ill. When, in fact, the state’s only articulated interest in passing a law is protection of society, it becomes apparent that the real purpose of the law, despite its platitudes to treatment, is preventive detention. We do not maintain that the SDP Act violates substantive due process only because those with APD currently cannot be treated. We maintain only that the legislature’s reason for passing the SDP Act, once properly exposed under the spotlight of strict scrutiny, was not for the stated purpose of treatment, but for the actual purpose of detaining a person who frightens us. Cf. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (holding that facially neutral statute violated free exercise clause in part because of city council’s discriminatory motivation); Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266-68, 97 S.Ct. 555, 563-65, 50 L.Ed.2d 450 (1977) (concluding that the circumstances surrounding the passage or enactment of legislation can be used to determine if the statute is a purposeful device for discriminatory treatment). Yet the majority, after noting that Foucha presents “constitutional limits to state-created definitions of mental illness in the civil commitment context,” somehow manages to dim the spotlight and instead “give[s] the legislature due regard in identifying medically recognized mental disorders, such as APD, that explain a person’s dangerousness and that are appropriate for civil commitment and treatment.” Ante, at 187. Never before has strict scrutiny been so lenient.

As the Kansas Supreme Court recently demonstrated, actual strict scrutiny necessarily leads to the opposite result. Matter of Care and Treatment of Hendricks, 259 Kan. 246, 912 P.2d 129 (1996) (striking down a civil commitment statute nearly identical to the SDP Act), cert. granted, — U.S. —, 116 S.Ct. 2522, 135 L.Ed.2d 1047 (1996). The majority in the case at bar distinguishes Hendricks by stating it was based upon Kansas’ own statutory definition of mental illness. Ante, at 185 n. 11. Although the Kansas Supreme Court did look at its mental illness statutes during its substantive due process analysis, it actually based its holding-on a strict reading of Foucha’s mental-illness requirement:

Therefore, as applied to Hendricks, the constitutionality of the Act depends upon a showing of dangerousness without a finding of mental illness. Clearly, the due process standard of Addington and Fou-cha is not met by the Act as applied to Hendricks.

Hendricks, 912 P.2d at 138.

Likewise, a federal district court in a ha-beas corpus proceeding found that Washington’s Sexually Violent Predator Statute, which had been upheld by the Washington Supreme Court,14 also failed strict scrutiny. “Like the scheme rejected in Foucha, the Statute here permits indefinite incarceration based on little more than a showing of potential future dangerousness. * * * Predictions of dangerousness alone are an insufficient basis to continue indefinitely the incarceration of offenders who have completed their prison terms.” Young v. Weston, 898 F.Supp. 744, 749, 751 (W.D.Wash.1995). Unlike the majority in this case, these courts fulfilled their constitutional duties, made difficult decisions, and followed Fou-cha’s mandate — namely that involuntary civil commitment is narrowly tailored to the government’s compelling interest in treatment only when the legislature’s actual reason for passing the statute is to give a mentally ill person the help he or she needs.15

*200III. Equal protection, ex post facto and double jeopardy

Technically speaking, we do not disagree with the majority’s equal protection analysis. Unlike substantive due process, which necessarily examines the statute’s effect on a person’s fundamental right of liberty, equal protection focuses on the distinction between those who fit within the statute’s reach and those who do not. Unless such a distinction involves a suspect classification, this court will ask only if there is any rational basis for such a selection. Pearson, 309 U.S. at 274, 60 S.Ct. at 525-26. When such a statute threatens a liberty interest, however, this court will apply heightened scrutiny and ask whether the statute delineates genuine and substantial distinctions. Blodgett, 510 N.W.2d at 917. The SDP Act distinguishes between those sexually dangerous persons who have a mental disorder and those who do not. Minn.Stat. § 253B.02, subd. 18b(a) (1994). The majority holds that the legislature’s decision to civilly commit the first group but not the second is valid because mental disorders help to “isolate sexually dangerous persons most likely to harm others in the future,” and because “the state’s interest in treating sexual predators is served by confining the scope of the SDP Act to those with mental disorders.” Ante, at 187. In short, this court is upholding the legislature’s determination that sexually dangerous persons with a mental disorder are both more dangerous and more amenable to treatment than are those without a mental disorder.

Although we do not disagree with this conclusion, we point out that the first justification for the distinction (dangerousness), while sufficient to uphold the act under the equal protection clause, is not sufficient to uphold the act under due process analysis. Likewise, the second justification for the distinction (treatment), while mere surplusage under equal protection requirements, is a necessity for this court’s conclusion that the SDP Act does not violate ex post facto or double jeopardy. Unlike substantive due process, which focuses on the government’s interests, ex post facto and double jeopardy focus on the statute’s purpose and whether it is “for treatment purposes and * * * not for purposes of preventive detention.” Call v. Gomez, 535 N.W.2d 312, 320 (Minn.1995) (emphasis added). Although it is apparent that the legislature’s motivation in passing the SDP Act was to lock up dangerous persons such as Linehan, the majority noted that “[t]he purpose and effect of the SDP Act is * ⅜ * predominantly remedial, not punitive.” Ante, at 188 (emphasis added).

As stated earlier, we elect not to quibble with this holding at this time. But see Young v. Weston, 898 F.Supp. 744, 751-54 (W.D.Wash.1995) (holding that Washington’s sexually violent predator statute violates ex post facto and double jeopardy). Despite the legislature’s motivation, the statute does include enough treatment provisions to conclude that its stated purpose is remedial. But we note that the Supreme Court has upheld as remedial only those civil commitment statutes that provide for both mandatory treatment at a psychiatric care facility and full discharge once the patient demonstrates that he or she no longer is in need of treatment. See Allen v. Illinois, 478 U.S. 364, 369-75, 106 S.Ct. 2988, 2992-95, 92 L.Ed.2d 296 (1986). The majority correctly states that “Linehan has not offered evidence that the treatment regime at MSH or MPPTC is a sham, or even that such treatment is inef*201fective.” Ante, at 189. But given the legislature’s real motivation behind the SDP Act, we are concerned that such evidence will become readily available in the near future. When that occurs, we will not hesitate to find that the SDP Act, in addition to violating substantive due process, also violates ex post facto and double jeopardy.

. During oral argument, Justice Anderson stated:

We’re all familiar with the Soviet Union gulag and Nazi Germany. * ⅞ * Let’s say people had antisocial conduct, dysfunctional in that particular society, and the state wanted to put them away for indeterminate confinement. * * * What are the safeguards here that would prevent that from happening in our society under a statute such as this?

In response, assistant attorney general John Kirwin said:

You, your honor. I think it is the function of the courts to draw those lines. * s 's Asking, 'At what level does the harm become so great that it's constitutional to have a civil commitment statute like this?’ * * * By its nature that standard is going to require the court to make some difficult decisions sometimes.

. As a further limitation on the permissible reach of the statute, this court said ”[i]t would not be reasonable to apply the provisions of the statute to every person guilty of sexual misconduct nor even to persons having strong sexual propensities.” Pearson, 205 Minn, at 555, 287 N.W. at 302.

. Neither the appellant nor the state argued that a commitment under the PP Act would have fit under either of Foucha 's other two categories.

. The trial court found that the appellant met the criteria for psychopathic personality under the standard imposed by Pearson. On appeal to this court, the appellant did not challenge the finding that he had "an uncontrollable sexual impulse dangerous to others." Blodgett, 510 N.W.2d at 912.

. Like Linehan, Blodgett suffered from an antisocial personality disorder.

. The majority concedes this point by stating that ”[i]t may be true, in a certain philosophical sense, that Blodgett was less blameworthy than is Linehan because Blodgett could not control his sexual impulses.”

. If it was clear that Foucha stood for the proposition that a mental disorder alone was a sufficient mental-illness justification for civil commitment, then there is no reason why the U.S. Supreme Court would have granted certiorari in Matter of Care and Treatment of Hendricks, 259 Kan. 246, 912 P.2d 129 (1996) (striking down *195Kansas statute nearly identical to SDP Act), cert. granted, - U.S. -, 116 S.Ct. 2522, 135 L.Ed.2d 1047 (1996).

. Such a compelling government interest can, depending on a state’s definition of an insanity acquittee, reach a person found to be not guilty by reason of insanity. See State v. Randall, 192 Wis.2d 800, 532 N.W.2d 94, 106-07 (1995) (holding that because Wisconsin considers an insanity acquittee to be "guilty beyond a reasonable doubt,” it can confine a presently sane insanity acquittee on dangerousness alone).

. The majority correctly rejected Linehan’s argument that criminal conviction and civil commitment are mutually exclusive. As this court stated in Pearson, "an uncontrollable and insane impulse to commit crime, in the mind of one who is conscious of the nature and quality of the act, is not allowed to relieve a person of criminal liability.” Pearson, 205 Minn, at 556, 287 N.W. at 303. However, this does not mean that the tests for a commitment’s validity under substantive due process are the same. In fact, they are very different.

.In addition to Linehan, we concluded that the state could not commit Peter Rickmyer under the PP Act.

.The Kansas Supreme Court in holding a similar statute unconstitutional noted that:

It is clear that the overriding concern of the legislature is to continue the segregation of sexually violent offenders from the public. Treatment with the goal of reintegrating them into society is incidental, at best.

Matter of Care and Treatment of Hendricks, 259 Kan. 246, 912 P.2d 129, 136 (1996), cert, granted, - U.S. -, 116 S.Ct. 2522, 135 L.Ed.2d 1047 (1996).

. The Supreme Court did not grant certiorari. In re Blodgett, 510 N.W.2d 910 (Minn.1994), cert. denied, - U.S. -, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994).

. In fact, the court of appeals noted that "[pier-sons whose mental afflictions leave them with a measure of self-control present an especially insidious risk, for they retain the ability to plan, wait, and delay the indulgence of their maladies until presented with a higher probability of suc*199cess.” Matter of Linehan, 544 N.W.2d 308, 318 (Minn.App.1996) (Linehan II).

. In re Young, 122 Wash.2d 1, 857 P.2d 989 (1993).

. While it is true that the Wisconsin Supreme Court recently upheld a civil commitment statute similar to our SDP Act, it did so by relying entirely upon Justice O’Connor’s concurrence in Foucha. State v. Post, 197 Wis.2d 279, 541 N.W.2d 115, 127 (1995). Unlike the Foucha plurality, which required a state to find a committee both mentally ill and dangerous, Justice O’Connor required only that there be some medical justification for commitment. Foucha, 504 U.S. at 88, 112 S.Ct. at 1789-90 (O'Connor, J., concurring). Consequently, the Wisconsin Supreme Court, much like majority in the case at bar, found that APD is a sufficient medical basis *200for commitment. Post, 541 N.W.2d at 127-28. Such a conclusion is not valid under federal constitutional jurisprudence however. Not only does Justice O’Connor’s concurrence lack the weight of law, it lacks any real guidance given the facts in both Post and Linehan II. The committee in Foucha had been found not guilty by reason of insanity. As Justice O'Connor put it, Foucha had "escape[d] punishment" by pleading insanity. Id. at 87, 112 S.Ct. at 1789 (O’Connor, J., concurring). Consequently, Justice O'Connor noted that ”[a]lthough insanity acquittees may not be incarcerated as criminals or penalized for asserting the insanity defense, this finding of criminal conduct sets them apart from ordinary citizens.” Id. (O'Connor, J., concurring). Line-han, like the committee in Post, did not escape criminal punishment for his prior bad acts. He was convicted and served his sentence. Accordingly, he is now outside the realm of the criminal justice system. To use Justice O'Connor’s words, Dennis Linehan is now an "ordinary citizen," one whom the state can civilly commit only upon a finding of both dangerousness and mental illness.