(dissenting) — The majority frames the issue: “Under RCW 10.77.150, who bears the burden of proof *256when an individual found not guilty by reason of insanity and committed to a state hospital seeks conditional release?” Majority at 244. A plain reading of RCW 10.77.150 answers the majority’s query, but that answer is not the majority’s. Rather this statute clearly places the burden on the state to justify continued incarceration.
To claim the federal constitution may permit a more restrictive scheme than state law is no answer since the laws of the State of Washington may provide greater protection to insanity acquittees than is necessarily required by the federal constitution. For example, a plea of not guilty by reason of insanity is ipso facto an adequate constitutional basis for committing the acquittee to a mental facility. Foucha v. Louisiana, 504 U.S. 71, 76, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992). However, in this state the insanity acquittee is not presumed to be dangerous at the time of acquittal and such determination, and his resulting commitment, is left to the trier of fact. See RCW 10.77.040 regarding instructions to jury on special verdict; RCW 10.77.080 requiring the court to make specific findings of fact substantially similar to those in RCW 10.77.040; RCW 10.77.110(1)-(3) which sets forth different mechanisms for dealing with the insanity acquittee based upon the determination of his level of dangerousness (or lack thereof). Only if an insanity acquittee is dangerous as a result of his mental infirmity may he be committed under our state law.
Once confined, the acquittee may then make application to the secretary for conditional release under state law. RCW 10.77.150(1). This statute differentiates between conditional release petitions brought with the approval of the secretary and those which are brought without the secretary’s approval. RCW 10.77.150(2). Those brought with the secretary’s recommendation must be granted a hearing; whereas the court has discretion to grant or deny a hearing to an acquittee if the secretary opposes release. Id. But in either case the purpose of the hearing is the same: to determine “whether or not the person may be released conditionally without substantial danger to other persons, *257or substantial likelihood of committing criminal acts jeopardizing public safety or security.” RCW 10.77.150(2).
A plain reading of the statute places the burden of proof at a conditional release hearing on the state. As amicus in the instant matter correctly notes: “No matter how the hospitalized person gets to the hearing stage . . . once the trial court has decided to hold a hearing, RCW 10.77.150(2) provides for only one mode of procedure, one issue to be resolved, and one burden of proof.” Br. of Amicus Curiae Washington Association of Criminal Defense Lawyers at 3. In pertinent part the statute provides:
The court. . . upon receipt of an application for conditional release with the secretary’s recommendation for conditional release, shall. . . schedule a hearing. The court may schedule a hearing on applications recommended for disapproval by the secretary. . . . The issue to be determined at such a hearing is whether or not the person may be released conditionally without substantial danger to other persons, or substantial likelihood of committing criminal acts jeopardizing public safety or security. The court, after the hearing, shall rule on the secretary’s recommendations, and if it disapproves of conditional release, may do so only on the basis of substantial evidence.
RCW 10.77.150(2) (emphasis added). By its terms the statute mandates conditional release be denied only on the basis of substantial evidence, meaning the absence of such evidence requires release. Placing the burden to produce substantial evidence on the one who opposes release is facially inconsistent with imposing the burden of proof on the one who seeks it.
The majority ultimately concludes a prisoner seeking conditional release under RCW 10.77.150 must meet the same burden as one seeking final discharge under former RCW 10.77.200 (1998) because the latter section references both conditional release and final discharge.7 Majority at 251. But former RCW 10.77.200(3) references both only to *258indicate there is nothing which prevents an acquittee from petitioning the court for either.
Former RCW 10.77.200(3) provides:
Nothing contained in this chapter shall prohibit the patient from petitioning the court for final discharge or conditional release from the institution in which he or she is committed. The issue to be determined on such proceeding is whether the petitioner, as a result of a mental disease or defect, is a substantial danger to other persons, or presents a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions.
Nothing contained in this chapter shall prohibit the committed person from petitioning for release by writ of habeas corpus.
Further, the majority’s conclusion ignores the Washington statute which distinguishes those issues to be determined at a conditional release hearing from those to be determined at a final release hearing. The issue for conditional release is simply whether or not the petitioner is dangerous. RCW 10.77.150(2). That provision allows mentally ill acquittees to be conditionally reintroduced into society while under supervision. However at a final discharge hearing the pertinent question is whether “as a result of a mental disease or defect” the petitioner represents a danger to society. RCW 10.77.200(2) (emphasis added). Therefore for final discharge the important determination is not simply whether the inmate is mentally ill or dangerous, but whether that dangerousness, if any, is the product of mental disease or defect. If it is not, the basis for holding him has evaporated and under Foucha he must be released, potential danger notwithstanding. Foucha, 504 U.S. at 77, 78.
I simply cannot reconcile the majority’s position that it would be anomalous to place the burden on the acquittee at a final discharge hearing and on the state at a conditional release hearing with the statutory text. I see no anomaly to require an acquittee to bear the burden when he seeks final *259discharge while at the same time requiring the state to bear the burden to show simply dangerousness at a conditional release hearing. A conditional release is just that, conditional. It can be revoked. Moreover unlike final discharge, a conditional release allows the state to retain supervisory authority over the acquittee’s daily life.
I am further troubled by the constitutional implications of the majoritys ruling. If a statute is constitutional when interpreted in one manner but unconstitutional when interpreted in another, “the legislature will be presumed to have intended a meaning consistent with the constitutionality of its enactment.” State ex rel. Dawes v. Wash. State Highway Comm’n, 63 Wn.2d 34, 38, 385 P.2d 376 (1963). Construing RCW 10.77.150(2) as does the majority, to place the burden of proof at a conditional release hearing upon the prisoner, not only requires of the prisoner the logical impossibility of proving a negative, but also raises grave constitutional concerns.
The facts here are remarkably similar to those presented in Foucha, 504 U.S. at 76. In Foucha the superintendent recommended the insanity acquittee be discharged as he was no longer mentally ill; however, doctors were not willing to certify Mr. Foucha was not dangerous. Id. at 74, 75. The trial court opposed the superintendent’s recommendation, determined Mr. Foucha failed to carry his burden of proof, and denied release. Id. at 75. But on appeal the Supreme Court held an insanity acquittee “may be held as long as he is both mentally ill and dangerous, but no longer.” Id. at 77.
Since Mr. Foucha was admittedly no longer mentally ill, the basis for his confinement had evaporated and the state was entitled to hold him no longer. Id. at 78. Consequently, the high court held the Louisiana statute requiring a committed, yet no longer mentally ill, person to prove his lack of dangerousness was unconstitutional because it allowed lack of evidence to justify continued commitment. An affirmative showing of mental illness which causes dangerousness, the court held, is the constitutionally mini*260mum basis for continued confinement. The petitioner in the instant matter is no more able to prove he is not dangerous than was Foucha. The question must be phrased in the affirmative, is he dangerous?
Even assuming Mr. Platt continued to labor under a mental illness at the time of his conditional release hearing, requiring him to prove that he was not dangerous is not constitutionally permissible. As previously noted, there is no presumption in Washington that an insanity acquittee remains dangerous, and under Foucha it is “unconstitutional for a State to continue to confine a harmless, mentally ill person.” Foucha, 504 U.S. at 77 (citing O’Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975)).
Consequently I cannot agree with the majority’s conclusion that “[i]f the individual is mentally ill, but the symptoms are controlled by medication or otherwise, a conditional release would be appropriate if the person no longer presents a substantial risk to others or is not a likely candidate to reoffend.” Majority at 252 (footnote omitted). Not so. Such an individual would be entitled to final discharge. Foucha could not be clearer: It is “unconstitutional for a State to continue to confine a harmless, mentally ill person.” Foucha, 504 U.S. at 77 (citing O’Connor v. Donaldson, 422 U.S. 563). Nor is dangerousness alone a constitutional basis for confinement. Id. at 82, 83.
Finally, none of the doctors in either Foucha or Platt asserted that the petitioners were actually dangerous. In Foucha Dr. Ritter testified, “ T don’t think I would feel comfortable in certifying that he would not be a danger to himself or other people.’ ” Foucha, 504 U.S. at 82 (quoting App. 18 (emphasis added)). Similarly, in Platt the trial court found ‘Western State Hospital was unable to make an accurate risk assessment to conditionally release Mr. Platt.” Clerk’s Papers at 9. Just as Dr. Ritter’s inability to certify a lack of dangerousness was an insufficient basis to confine Foucha, Western State Hospital’s inability to *261certify a lack of dangerousness with respect to Mr. Platt is equally insufficient.
Conclusion
A plain reading of RCW 10.77.150(2) puts the burden of proof at a conditional release hearing upon the state.
I therefore dissent.
Alexander, C.J., and Johnson, J., concur with Sanders, J.
Laws of 2000, ch. 94, § 16, substituted “release” for “final discharge.”