In Foucha v. Louisiana, 504 U.S. 71, (1992) the United States Supreme Court struck down a Louisiana statute that "allowed a person acquitted by reason of insanity to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness." (Id. at p. 73.) The Supreme Court reviewed a Louisiana statute that allowed the continued detention of insanity acquittees who were no longer mentally ill, unless the committed person could prove he was no longer dangerous. (Id. at p. 73.) The Supreme Court found that the statute violated the requirements of due process because its procedures, including its placing of the burden on the committed person to prove he or she was not dangerous, were inadequate to protect Foucha's liberty interest under the Constitution in being freed from indefinite confinement in a mental facility. (Id. at pp. 82-83.) 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 minimum 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. In Foucha v. Louisiana (1992) 504 U.S. 71, the United States Supreme Court held unconstitutional a Louisiana statute "which permitted the indefinite detention of insanity acquittees who are not mentally ill but who do not prove they would not be dangerous to others." ( Id. at p. 83.) There, the defendant did not at the time of his hearing suffer from a mental illness, but had "an antisocial personality, a condition that is not a mental disease . . . ." ( Id. at p. 75.) Foucha held that because the evidence established that the defendant was not suffering from a mental disease or illness, he could not be civilly committed without a finding of current mental illness and dangerousness. ( Id. at p. 78.) The United States Supreme Court, in a five-four decision, held unconstitutional a Louisiana statute that allowed the continued confinement in a psychiatric hospital of an insanity acquittee who had recovered from his mental illness but was still thought to be dangerous due to an antisocial personality. Id. at 77-80. The petitioner in Foucha had been committed to a mental institution after being found not guilty by reason of insanity of aggravated burglary and illegal discharge of a firearm. Approximately four years later, the hospital superintendent recommended the petitioner's discharge or release after a hospital review panel concluded "that there had been no evidence of mental illness since admission and recommended that petitioner be conditionally discharged." Id. at 74. At a hearing, one of the doctors testified that petitioner "probably suffered from a drug-induced psychosis but that he had recovered from the temporary condition; that he evidenced no signs of psychosis or neurosis and was in 'good shape' mentally; that he had, however, an antisocial personality, a condition that is not a mental disease and that is untreatable." Id. at 75. The doctor also testified that he would not "feel comfortable in certifying that petitioner would not be a danger to himself or other people" because the petitioner had been involved in "several altercations" while at the institution. Id. at 75. On such a record, the trial court concluded that the "petitioner was dangerous to himself and others and ordered him returned to the mental institution." Id. After granting certiorari, the United States Supreme Court majority observed that "when a person charged with having committed a crime is found not guilty by reason of insanity, . . . a State may commit that person without satisfying the Addington v. Texas burden with respect to mental illness and dangerousness." Id. at 76. The justification is that the verdict establishes that: (1) the defendant "committed an act" constituting a "criminal offense"; and (2) he or she committed this act because of a mental illness. Id. Accordingly, "it could be properly inferred that at the time of the verdict, the defendant was still mentally ill and dangerous and hence could be committed." Id. However, "the committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous." Id. at 77. The Supreme Court held that because the basis for holding the petitioner in a psychiatric facility had dissipated, i.e., he was no longer mentally ill, the state was "no longer entitled to hold him on that basis." Id. at 78. A review panel at the institution of confinement determined that "there had been no evidence of mental illness since his admission." (Id. at p. 74.) Nonetheless, the state continued to confine Foucha based on the determination that he was dangerous to himself and others. (Id. at p. 75.) In concluding that this violated due process, the United States Supreme Court commented that Foucha was "not now entitled to an adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community. Indeed, the State need prove nothing to justify continued detention, for the statute places the burden on the detainee to prove that he is not dangerous." (Id. at pp. 81-82.) The trial court declined to release the petitioner after a hearing in which no medical professional testified he suffered from a mental illness, and the only positive evidence of dangerousness was the testimony by medical professionals who did not feel comfortable in certifying the petitioner would not be dangerous if released. (Foucha, supra, 504 U.S. at pp. 74-75.) The Supreme Court held, first, the petitioner could not continue to be confined in a mental institution because "according to the testimony given at the hearing in the trial court, the petitioner is not suffering from a mental disease or illness." (Foucha, supra, 504 U.S. at p. 79.) The Supreme Court held next, "if the petitioner can no longer be held as an insanity acquittee in a mental hospital, he is entitled to constitutionally adequate procedures to establish the grounds for his confinement." (Ibid.) What procedures are constitutionally adequate? At the petitioner's recommitment hearing in Foucha, no medical professional--or anybody else for that matter--testified the petitioner would be a danger to the community. (Id. at p. 82.) The only evidence at the hearing supporting recommittal was a description of the petitioner's antisocial behavior while in prison and testimony by physicians that they would not "'feel comfortable'" in certifying that the petitioner would not be dangerous to himself or other people. (Ibid.) The Supreme Court concluded such evidence was "not enough to defeat the petitioner's liberty interest under the Constitution in being freed from indefinite confinement in a mental facility." (Ibid.) The Court considered a Louisiana commitment scheme for criminal defendants who are found not guilty by reason of insanity. (Id. at p. 73.) Under that scheme, an acquitted person could be denied release from confinement even if the person no longer suffers from any mental illness. (Ibid.) Indeed, the petitioner in the case, Foucha, had recovered from his drug induced psychosis and was not suffering from a mental illness or disease when he sought release. (Id. at pp. 74-75, 79.) Nevertheless, the state court ordered Foucha recommitted to the mental institution because he was dangerous to himself and others. (Id. at p. 75.) The court held this was unconstitutional. The court explained that because the State of Louisiana does not contend that Foucha was mentally ill at the time of the trial court's hearing, "the basis for holding Foucha in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis." (Id. at p. 78.) In Foucha v. Louisiana (1992) the defendant was found not guilty by reason of insanity and committed to a psychiatric hospital "until such time as doctors recommended that he be released, and until further order of the court." (Foucha, supra, 504 U.S. at p. 74.) Four years later, a three-member panel of hospital doctors recommended Foucha's conditional release because "there had been no evidence of mental illness since admission." (Ibid.) The trial court appointed two doctors to evaluate Foucha's current condition and report to the court. In their reports, both doctors concurred that Foucha was presently in remission from mental illness, but neither doctor would "'certify that he would not constitute a menace to himself or others if released.'" (Id. at pp. 74-75.) At the hearing following the reports, one of the doctors testified that Foucha was not suffering from either a "neurosis or psychosis and that he was in 'good shape' mentally, but that he had an 'antisocial personality,'" an untreatable condition that is not a mental disease. (Id. at p. 75.) The doctor further testified that Foucha had been involved in fights at the hospital and that "he, the doctor, would not 'feel comfortable in certifying that Foucha would not be a danger to himself or to other people.'" (Ibid.) It was stipulated that the other doctor would testify the same way if called. On this basis, "the court ruled that Foucha was dangerous to himself and others and ordered him returned to the mental institution." (Ibid.) The Louisiana Supreme Court affirmed Foucha's continued indefinite commitment as an insanity acquittee because "Foucha had not carried the burden placed upon him by statute to prove that he was not dangerous." (Ibid.) The United States Supreme Court reversed, finding that the Louisiana statute violated due process because it permitted the continued civil commitment of an insanity acquittee who no longer met the dual constitutional prerequisites for commitment: dangerousness and mental illness. In doing so, the Court reaffirmed its prior holding in Addington v. Texas (1979) that a state may not civilly commit a person unless it shows by clear and convincing evidence that the person is mentally ill and dangerous. (Foucha, supra, 504 U.S. at pp. 75-76, 86, citing Addington, supra, 441 U.S. at pp. 425-433.) But the Foucha court also reaffirmed its holding in Jones v. United States (1983), that "when a person charged with having committed a crime is found not guilty by reason of insanity ... a State may commit that person without satisfying the Addington burden with respect to mental illness and dangerousness." (Foucha, at p. 76.) Because the evidence presented at the review hearing showed Foucha, an insanity acquittee, was not currently mentally ill, the Court concluded his continued confinement violated his constitutional right to due process. (Id. at p. 79.)The Court considered the constitutionality of a Louisiana statute providing for the indefinite involuntary commitment of individuals found not guilty by reason of insanity who were dangerous, but not mentally ill. The trial court found that the defendant had a personality disorder that was not considered a mental illness or, for that matter, a treatable disorder. There was testimony that the defendant was not suffering from either a neurosis or psychosis and that he was in "'good shape'" mentally. (Foucha, supra, 504 U.S. at p. 75.) There was further testimony that antisocial personality disorder is a "disorder for which there is no effective treatment . . . ." (Id. at p. 82.) Foucha prohibits the continued confinement of insanity acquittees who are no longer mentally ill, particularly in a situation in which the state has not proven, by clear and convincing evidence, that the individual poses a danger to the community. Foucha does not address the burden of proof that would apply at future release hearings, after the state had already established beyond a reasonable doubt that the individual is mentally ill and poses a danger, and thus does not support appellant's due process challenge to section 6608's provision that places the burden on him to prove by a preponderance of the evidence that he is entitled to release because he no longer meets the SVP criteria. The Foucha court acknowledged the holding in Addington v. Texas (1979) that a state may not civilly commit a person unless it establishes by clear and convincing evidence that the person is mentally ill and dangerous. (Foucha, supra, 504 U.S. at pp. 75-76, 86, citing Addington, supra, 441 U.S. at pp. 425-433.) The court also noted its holding in Jones, supra, 463 U.S. 354, that a person who is found not guilty by reason of insanity may be automatically confined without a separate hearing to determine his or her current mental illness or dangerousness because the verdict is presumed to have shown those requirements, but that an insanity acquittee is entitled to release when he or she is no longer mentally ill or dangerous. (Foucha, supra, 504 U.S. at pp. 76-78.) What the Foucha court found significant was that the evidence presented at a review hearing established that the insanity acquittee in that case was not currently mentally ill. It was for this reason that the court concluded that Foucha's continued confinement violated his constitutional right to due process. (Foucha, supra, 504 U.S. at p. 79.) The Court stated that as a matter of due process, a "'committed acquittee is entitled to release when he has recover his sanity or is no longer dangerous,; i.e., the acquittee may be held as long as he is both mentally ill and dangerous, but no longer." (Foucha, supra, at p. 77.) Under those set of circumstances, where a defendant no longer suffered from a mental illness, the court determined that the prosecution has the burden to prove by clear and convincing evidence that there were grounds for the defendant's continued confinement. (Id. at p. 86.)