2072 117 SUPREME COURT REPORTER 521 U.S. 344 addressed directly to federal courts, provid- S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1968) ing, ‘‘[a]n application for a writ of habeas (same); Felker v. Turpin, 518 U.S. 651, 116 corpus on behalf of a person in custody pur- S.Ct. 2333, 135 L.Ed.2d 827 (1996) (applying suant to the judgment of a State court shall different section of the AEDPA to pending not be granted TTT unless TTTT ’’ (Emphasis case), and of judicial changes, see, e.g., Stone added.) v. Powell, 428 U.S. 465, 495, n. 38, 96 S.Ct. 3037, 3052–3053, n. 38, 49 L.Ed.2d 1067 Whether the approach is framed in terms (1976) (rejecting petitioner’s contention that of ‘‘retroactive effect,’’ as the Landgraf ma- change in law should apply prospectively); jority put it, 511 U.S., at 280, 114 S.Ct., at Sumner v. Mata, supra, at 539, 549–551, 101 1505, or in terms of ‘‘the relevant activity S.Ct., at 765, 770–771 (applying presumption that the rule regulates,’’ as Justice SCALIA’s of correctness of state-court findings of fact concurrence put it, see id., at 291, 114 S.Ct., to pending case); Wainwright v. Sykes, 433 at 1524 (opinion concurring in judgment), our U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) longstanding practice of applying procedural, (applying the cause and prejudice doctrine to prospective, and jurisdiction-ousting statutes pending case); Brecht v. Abrahamson, 507 to pending cases must play an important part U.S. 619, 638–639, 113 S.Ct. 1710, 1722–1723, in the decision. These principles all favor 123 L.Ed.2d 353 (1993) (applying actual prej- application of § 2254(d) to pending cases. udice standard to pending case).

It is a procedural statute, regulating pro- Because the Court’s inquiry is incomplete, spective relief, and addressed directly to fed- I believe it has reached the wrong result in eral courts and removing their power to give this case. I would affirm the judgment of such relief in specified circumstances. Our the Court of Appeals. cases therefore strongly suggest that, absent congressional direction otherwise, we should apply § 2254(d) to pending cases. This is , not because of any peculiar characteristic intrinsic to the writ of habeas corpus, but rather because modifications to federal courts’ authority to issue the writ are neces- sarily of that stripe—procedural, prospective, 521 U.S. 346, 138 L.Ed.2d 501 and addressed to courts. It is therefore not S 346KANSAS, Petitioner, surprising that the parties have not pointed us to a single case where we have found a v. modification in the scope of habeas corpus Leroy HENDRICKS. relief inapplicable to pending cases. To the contrary, respondent and S 345amici have Leroy HENDRICKS, Petitioner, pointed instead to the uniform body of our v. cases applying such changes to all pending cases. This has been true both of statutory KANSAS. changes in the scope of the writ, see, e.g., Nos. 95–1649, 95–9075. Gusik v. Schilder, 340 U.S. 128, 131–133, and Argued Dec. 10, 1996. n. 4, 71 S.Ct. 149, 151–153, and n. 4, 95 L.Ed. Decided June 23, 1997. 146 (1950) (applying 1948 habeas amend- ments to pending claims); Smith v. Yeager, 393 U.S. 122, 124–125, 89 S.Ct. 277, 278–279, Defendant convicted of indecent liberties 21 L.Ed.2d 246 (1968) (per curiam) (applying with child appealed from an order of the 1966 habeas amendments to pending claims); District Court, Sedgwick County, Gregory L. Carafas v. LaVallee, 391 U.S. 234, 239, 88 Waller, J., committing him to custody of Sec-

longstanding practice of applying jurisdiction- ousting statutes to pending cases. 521 U.S. 346 KANSAS v. HENDRICKS 2073 Cite as 117 S.Ct. 2072 (1997) retary of Social and Rehabilitation Services mitment under substantive due process anal- based on jury finding that he was sexually ysis. U.S.C.A. Const.Amend. 14. violent predator under Kansas Sexually Vio- lent Predator Act. The Kansas Supreme 4. Constitutional Law O255(5) Court, 259 Kan. 246, 912 P.2d 129, reversed. Disagreements among psychiatric pro- Certiorari was granted. The Supreme fessionals as to whether pedophilia, or para- Court, Justice Thomas, held that: (1) Act’s philias in general, are ‘‘mental illnesses’’ do definition of ‘‘mental abnormality’’ satisfied not tie State’s hands in setting bounds of its substantive due process requirements for civ- civil commitment laws under substantive due il commitment, and (2) Act did not establish process analysis. U.S.C.A. Const.Amend. 14. ‘‘criminal’’ proceedings, and involuntary con- finement pursuant to Act was not punitive, 5. Constitutional Law O70.1(7.1) thus precluding finding of any double jeopar- When legislature undertakes to act in dy or ex post facto violation. areas fraught with medical and scientific un- Reversed. certainties, legislative options must be espe- Justice Kennedy filed concurring opin- cially broad and courts should be cautious ion. not to rewrite legislation. Justice Breyer filed dissenting opinion in 6. Constitutional Law O203 which Justices Stevens and Souter joined, Double Jeopardy O23 and Justice Ginsburg joined in part. Mental Health O441.1 Kansas Sexually Violent Predator Act 1. Constitutional Law O255(5) did not establish ‘‘criminal’’ proceedings, and Mental Health O441.1 involuntary confinement pursuant to Act was Kansas Sexually Violent Predator Act’s not punitive, thus precluding finding of any definition of ‘‘mental abnormality’’ as conge- double jeopardy or ex post facto violation; nital or acquired condition affecting emotion- Kansas described Act as creating ‘‘civil’’ com- al or volitional capacity which predisposes mitment procedure, commitment under Act person to commit sexually violent offenses did not implicate retribution or deterrence, satisfied substantive due process require- Act required no finding of scienter, immedi- ments for civil commitment, despite claim ate release was permitted upon showing that that finding of ‘‘mental illness’’ was prerequi- confined person was no longer dangerous or site for civil commitment; Act required evi- mentally impaired, use of procedural safe- dence of past sexually violent behavior and guards traditionally followed in criminal tri- present mental condition creating likelihood als did not render proceedings criminal, and of such conduct in future if person is not treatment, if possible, was at least ancillary incapacitated. U.S.C.A. Const.Amend. 14; goal of Act. U.S.C.A. Const. Art. 1, § 10, cl. K.S.A. 59–29a02(b). 1; Amend. 5; K.S.A. 59–29a03(a), 59–29a07, 59–29a08. 2. Constitutional Law O255(1) Although freedom from physical re- 7. Action O18 straint has always been at core of liberty Categorization of particular proceeding protected by due process clause from arbi- as ‘‘civil’’ or ‘‘criminal’’ is first of all question trary governmental action, that liberty inter- of statutory construction; court must initially est is not absolute. U.S.C.A. Const.Amend. ascertain whether legislature meant statute 14. to establish civil proceedings, and if so, court ordinarily defers to legislature’s stated in- 3. Constitutional Law 255(5) O tent. Finding of dangerousness, standing See publication Words and Phrases alone, is ordinarily not sufficient ground upon for other judicial constructions and def- which to justify indefinite involuntary com- initions. 2074 117 SUPREME COURT REPORTER 521 U.S. 346

8. Action O18 public; to extent that past behavior is taken Although ‘‘civil’’ label is not always dis- into account, it is used solely for evidentiary positive in determining whether proceeding purposes. U.S.C.A. Const. Art. 1, § 10, cl. 1; is ‘‘civil’’ or ‘‘criminal,’’ court will reject legis- K.S.A. 59–29a01 et seq. lature’s manifest intent only where party Syllabus * challenging statute provides clearest proof that statutory scheme is so punitive either in Kansas’ Sexually Violent Predator Act purpose or effect as to negate State’s inten- establishes procedures for the civil commit- tion to deem it civil. ment of persons who, due to a ‘‘mental ab- normality’’ or a ‘‘personality disorder,’’ are 9. Action O18 likely to engage in ‘‘predatory acts of sexual Existence of scienter requirement is cus- violence.’’ Kansas filed a petition under the tomarily important element in distinguishing Act in state court to commit respondent (and ‘‘criminal’’ from ‘‘civil’’ statutes. cross-petitioner) Hendricks, who had a long history of sexually molesting children and 10. Criminal Law O1205 was scheduled for release from prison. The Mental Health O437 court reserved ruling on Hendricks’ chal- Mere fact that person is detained does lenge to the Act’s constitutionality, but grant- not inexorably lead to conclusion that govern- ed his request for a jury trial. After Hen- ment has imposed ‘‘punishment’’; state may dricks testified that he agreed with the state take measures to restrict freedom of the physician’s diagnosis that he suffers from dangerously mentally ill, which is a legiti- pedophilia and is not cured and that he con- mate, nonpunitive governmental objective. tinues to harbor sexual desires for children See publication Words and Phrases that he cannot control when he gets for other judicial constructions and def- initions. ‘‘stressed out,’’ the jury determined that he was a sexually violent predator. Finding 11. Double Jeopardy O23 that pedophilia qualifies as a mental abnor- For double jeopardy purposes, if individ- mality under the Act, the court ordered him ual otherwise meets requirements for invol- committed. On appeal, the State Supreme untary civil commitment, state is under no Court invalidated the Act on the ground that obligation to release that individual simply the precommitment condition of a ‘‘mental because detention would follow period of in- abnormality’’ did not satisfy what it per- carceration. U.S.C.A. Const.Amend. 5. ceived to be the ‘‘substantive’’ due process 12. Double Jeopardy O134, 135 requirement that involuntary civil commit- ment must be predicated on a ‘‘mental ill- Blockburger test for determining wheth- ness’’ finding. It did not address Hendricks’ er there are two offenses or only one where ex post facto and double jeopardy claims. same act or transaction violates two distinct statutory provisions does not apply outside of Held: successive prosecution context. U.S.C.A. 1. The Act’s definition of ‘‘mental ab- Const.Amend. 5. normality’’ satisfies ‘‘substantive’’ due pro- cess requirements. An individual’s constitu- 13. Constitutional Law O203 tionally protected liberty interest in avoiding Mental Health O441.1 physical restraint may be overridden even in For purposes of ex post facto analysis, the civil context. Jacobson v. Massachusetts, Kansas’ Sexually Violent Predator Act does 197 U.S. 11, 26, 25 S.Ct. 358, 361, 49 L.Ed. not have retroactive effect, but rather, per- 643. This Court has consistently upheld in- mits involuntary confinement based on deter- voluntary commitment statutes that detain mination that person currently both suffers people who are unable to control their behav- from mental abnormality or personality dis- ior and thereby pose a danger to the public order and is likely to pose future danger to health and safety, provided the confinement

* The syllabus constitutes no part of the opinion of See United States v. Detroit Timber & Lumber Co., the Court but has been prepared by the Reporter 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. of Decisions for the convenience of the reader. 499. 521 U.S. 348 KANSAS v. HENDRICKS 2075 Cite as 117 S.Ct. 2072 (1997) takes place pursuant to proper procedures S.Ct. 2636, 2641–2642, 65 L.Ed.2d 742. He and evidentiary standards. Foucha v. Loui- has failed to satisfy this heavy burden. siana, 504 U.S. 71, 80, 112 S.Ct. 1780, 1785– Commitment under the Act does not impli- 1786, 118 L.Ed.2d 437. The Act unambigu- cate either of the two primary objectives of ously requires a precommitment finding of criminal punishment: retribution or deter- dangerousness either to one’s self or to oth- rence. Its purpose is not retributive: It ers, and links that finding to a determination does not affix culpability for prior criminal that the person suffers from a ‘‘mental ab- conduct, but uses such conduct solely for normality’’ or ‘‘personality disorder.’’ Gener- evidentiary purposes; it does not make crim- ally, this Court has sustained a commitment inal conviction a prerequisite for commit- statute if it couples proof of dangerousness ment; and it lacks a scienter requirement, an

S 347with proof of some additional factor, such important element in distinguishing criminal as a ‘‘mental illness’’ or ‘‘mental abnormali- and civil statutes. Nor can the Act be said ty,’’ see, e.g., Heller v. Doe, 509 U.S. 312, to act as a deterrent, since persons with a 314–315, 113 S.Ct. 2637, 2639–2640, 125 mental abnormality or personality disorder L.Ed.2d 257, for these additional require- are unlikely to be deterred by the threat of ments serve to limit confinement to those confinement. The conditions surrounding who suffer from a volitional impairment ren- confinement—essentially the same as condi- dering them dangerous beyond their control. tions for any civilly committed patient—do The Act sets forth comparable criteria with not suggest a punitive purpose. Although its precommitment requirement of ‘‘mental the commitment scheme here involves an abnormality’’ or ‘‘personality disorder.’’ affirmative restraint, such restraint of the Contrary to Hendricks’ argument, this Court dangerously mentally ill has been historically has never required States to adopt any par- regarded as a legitimate nonpunitive objec- ticular nomenclature in drafting civil commit- tive. Cf. United States v. Salerno, 481 U.S. ment statutes and leaves to the States the 739, 747, 107 S.Ct. 2095, 2101–2102, 95 task of defining terms of a medical nature L.Ed.2d 697. The confinement’s potentially that have legal significance. Cf. Jones v. indefinite duration is linked, not to any puni- United States, 463 U.S. 354, 365, n. 13, 103 tive objective, but to the purpose of holding a S.Ct. 3043, 3050, n. 13, 77 L.Ed.2d 694. The person until his mental abnormality no long- legislature is therefore not required to use er causes him to be a threat to others. He is the specific term ‘‘mental illness’’ and is free thus permitted immediate release upon a to adopt any similar term. Pp. 2079–2081. showing that he is no longer dangerous, and 2. The Act does not violate the Consti- the longest S 348he can be detained pursuant to tution’s double jeopardy prohibition or its a single judicial proceeding is one year. The ban on ex post facto lawmaking. Pp. 2081– State’s use of procedural safeguards applica- 2086. ble in criminal trials does not itself turn the (a) The Act does not establish criminal proceedings into criminal prosecutions. Al- proceedings, and involuntary confinement un- len, supra, at 372, 106 S.Ct., at 2993–2994. der it is not punishment. The categorization Finally, the Act is not necessarily punitive if of a particular proceeding as civil or criminal it fails to offer treatment where treatment is a question of statutory construction. Allen for a condition is not possible, or if treat- v. Illinois, 478 U.S. 364, 368, 106 S.Ct. 2988, ment, though possible, is merely an ancillary, 2991–2992, 92 L.Ed.2d 296. Nothing on the rather than an overriding, state concern. face of the Act suggests that the Kansas The conclusion that the Act is nonpunitive Legislature sought to create anything other removes an essential prerequisite for both than a civil commitment scheme. That mani- Hendricks’ double jeopardy and ex post facto fest intent will be rejected only if Hendricks claims. Pp. 2081–2085. provides the clearest proof that the scheme is (b) Hendricks’ confinement does not so punitive in purpose or effect as to negate amount to a second prosecution and punish- Kansas’ intention to deem it civil. United ment for the offense for which he was con- States v. Ward, 448 U.S. 242, 248–249, 100 victed. Because the Act is civil in nature, its 2076 117 SUPREME COURT REPORTER 521 U.S. 348 commitment proceedings do not constitute a 1996 WL 593579 (Reply.Brief). second prosecution. Cf. Jones, supra. As 1996 WL 582488 (Reply.Brief). this commitment is not tantamount to pun- ishment, the detention does not violate the S 350Justice THOMAS delivered the opinion Double Jeopardy Clause, even though it fol- of the Court. lows a prison term. Baxstrom v. Herold, 383 In 1994, Kansas enacted the Sexually Vio- U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620. Hen- lent Predator Act, which establishes proce- dricks’ argument that, even if the Act sur- dures for the civil commitment of persons vives the ‘‘multiple punishments’’ test, it fails who, due to a ‘‘mental abnormality’’ or a the ‘‘same elements’’ test of Blockburger v. ‘‘personality disorder,’’ are likely to engage United States, 284 U.S. 299, 52 S.Ct. 180, 76 in ‘‘predatory acts of sexual violence.’’ Kan. L.Ed. 306, is rejected, since that test does Stat. Ann. § 59–29a01 et seq. (1994). The not apply outside of the successive prosecu- tion context. Pp. 2085–2086. State invoked the Act for the first time to commit Leroy Hendricks, an inmate who had (c) Hendricks’ ex post facto claim is sim- a long history of sexually molesting children, ilarly flawed. The Ex Post Facto Clause and who was scheduled for release from pris- pertains exclusively to penal statutes. Cali- on shortly after the Act became law. Hen- fornia Dept. of Corrections v. Morales, 514 dricks challenged his commitment on, inter U.S. 499, 505, 115 S.Ct. 1597, 1601, 131 alia, ‘‘substantive’’ due process, double jeop- L.Ed.2d 588. Since the Act is not punish- ardy, and ex post facto grounds. The Kansas ment, its application does not raise ex post Supreme Court invalidated the Act, holding facto concerns. Moreover, the Act clearly does not have retroactive effect. It does not that its precommitment condition of a ‘‘men- criminalize conduct legal before its enact- tal abnormality’’ did not satisfy what the ment or deprive Hendricks of any defense court perceived to be the ‘‘substantive’’ due that was available to him at the time of his process requirement that involuntary civil crimes. P. 2086. commitment must be predicated on a finding of ‘‘mental illness.’’ In re Hendricks, 259 259 Kan. 246, 912 P.2d 129, reversed. Kan. 246, 261, 912 P.2d 129, 138 (1996). The THOMAS, J., delivered the opinion of State of Kansas petitioned for certiorari. the Court, in which REHNQUIST, C.J., and Hendricks subsequently filed a cross-petition O’CONNOR, SCALIA, and KENNEDY, JJ., in which he reasserted his federal double joined. KENNEDY, J., filed a concurring jeopardy and ex post facto claims. We opinion, post, p. 2087. BREYER, J., filed a granted certiorari on both the petition and dissenting opinion, in which STEVENS and the cross-petition, 518 U.S. 1004, 116 S.Ct. SOUTER, JJ., joined, and in which 2522, 135 L.Ed.2d 1047 (1996), and now re- GINSBURG, J., joined as to Parts II and verse the judgment below. III, post, p. 2087.

I Carla J. Stovall, Topeka, KS, for petitioner in No. 95–1649. A S 349Thomas J. Weilert, Wichita, KS, for pe- The Kansas Legislature enacted the Sexu- titioner in No. 95–9075. ally Violent Predator Act (Act) in 1994 to For U.S. Supreme Court briefs, see: grapple with the problem of managing repeat sexual offenders.1 Although Kansas 1996 WL 450661 (Pet.Brief). alSready351 had a statute addressing the invol- 1996 WL 435941 (Pet.Brief). untary commitment of those defined as 1996 WL 528985 (Resp.Brief). ‘‘mentally ill,’’ the legislature determined that 1996 WL 509502 (Resp.Brief). existing civil commitment procedures were

1. Subsequent to Hendricks’ commitment, the period from 60 to 90 days); § 59–29a04 (requir- Kansas Legislature amended the Act in ways not ing state attorney general to initiate commitment relevant to this action. See, e.g., Kan. Stat. Ann. proceedings). § 59–29a03 (Supp.1996) (changing notification 521 U.S. 353 KANSAS v. HENDRICKS 2077 Cite as 117 S.Ct. 2072 (1997) inadequate to confront the risks presented by person a menace to the health and safety of ‘‘sexually violent predators.’’ In the Act’s others.’’ § 59–29a02(b). preamble, the legislature explained: As originally structured, the Act’s civil commitment procedures pertained to: (1) a ‘‘[A] small but extremely dangerous group presently confined person who, like Hen- of sexually violent predators exist who do dricks, ‘‘has been convicted of a sexually not have a mental disease or defect that violent offense’’ and is scheduled for release; renders them appropriate for involuntary (2) a person who has been ‘‘charged with a treatment pursuant to the [general invol- sexually violent offense’’ but has been found untary civil commitment statute]TTTT In incompetent to stand trial; (3) a person who contrast to persons appropriate for civil has been found ‘‘not guilty by reason of commitment under the [general involun- insanity of a sexually violent offense’’; and tary civil commitment statute], sexually vi- (4) a person found ‘‘not guilty’’ of a sexually olent predators generally have anti-social violent offense because of a mental disease or personality features which are unamenable defect. § 59–29a03(a), § 22–3221 (1995). to existing mental illness treatment modal- ities and those features render them likely The initial version of the Act, as applied to to engage in sexually violent behavior. a currently confined person such as Hen- The legislature further finds that sexually dricks, was designed to initiate a specific violent predators’ likelihood of engaging in series of procedures. The custodial agency repeat acts of predatory sexual violence is was required to notify the local prosecutor 60 high. The existing involuntary commit- days before the anticipated release of a per- son who might have met the Act’s criteria. ment procedure TTT is inadequate to ad- § 59–29a03. The prosecutor was then obli- dress the risk these sexually violent pre- gated, within 45 days, to decide whether to dators pose to society. The legislature file a petition in state court seeking the further finds that the prognosis for reha- person’s involuntary commitment. § 59– bilitating sexually violent predators in a 29a04. If such a petition were filed, the prison setting is poor, the treatment needs court was to determine whether ‘‘probable of this population are very long term and cause’’ existed to support a finding that the the treatment modalities for this popula- person was a ‘‘sexually violent predator’’ and tion are very different than the traditional thus eligible for civil commitment. Upon treatment modalities for people appropri- such a determination, transfer of the individ- ate for commitment under the [general ual to a secure facility for professional evalu- involuntary civil commitment statute].’’ ation would occur. § 59–29a05. After that Kan. Stat. Ann. § 59–29a01 (1994). evaluation, S 353a trial would be held to deter- As a result, the legislature found it neces- mine beyond a reasonable doubt whether the sary to establish ‘‘a civil commitment proce- individual was a sexually violent predator. If dure for the long-term care and S 352treatment that determination were made, the person of the sexually violent predator.’’ Ibid. The would then be transferred to the custody of Act defined a ‘‘sexually violent predator’’ as: the Secretary of Social and Rehabilitation Services (Secretary) for ‘‘control, care and ‘‘any person who has been convicted of or treatment until such time as the person’s charged with a sexually violent offense and mental abnormality or personality disorder who suffers from a mental abnormality or has so changed that the person is safe to be personality disorder which makes the per- at large.’’ § 59–29a07(a). son likely to engage in the predatory acts In addition to placing the burden of proof of sexual violence.’’ § 59–29a02(a). upon the State, the Act afforded the individu- A ‘‘mental abnormality’’ was defined, in turn, al a number of other procedural safeguards. as a ‘‘congenital or acquired condition affect- In the case of an indigent person, the State ing the emotional or volitional capacity which was required to provide, at public expense, predisposes the person to commit sexually the assistance of counsel and an examination violent offenses in a degree constituting such by mental health care professionals. § 59– 2078 117 SUPREME COURT REPORTER 521 U.S. 353

29a06. The individual also received the right posed his genitals to two young girls. At to present and cross-examine witnesses, and that time, he pleaded guilty to indecent expo- the opportunity to review documentary evi- sure. Then, in 1957, he was convicted of dence presented by the State. § 59–29a07. lewdness involving a young girl and received Once an individual was confined, the Act a brief jail sentence. In 1960, he molested required that ‘‘[t]he involuntary detention or two young boys while he worked for a carni- commitment TTT shall conform to constitu- val. After serving two years in prison for tional requirements for care and treatment.’’ that offense, he was paroled, only to be rear- § 59–29a09. Confined persons were afforded rested for molesting a 7–year–old girl. At- three different avenues of review: First, the tempts were made to treat him for his sexual committing court was obligated to conduct an deviance, and in 1965 he was considered annual review to determine whether contin- ‘‘safe to be at large,’’ and was discharged ued detention was warranted. § 59–29a08. from a state psychiatric hospital. App. 139– Second, the Secretary was permitted, at any 144. time, to decide that the confined individual’s Shortly thereafter, however, Hendricks condition had so changed that release was sexually assaulted another young boy and appropriate, and could then authorize the girl—he performed oral sex on the 8–year– person to petition for release. § 59–29a10. old girl and fondled the 11–year–old boy. Finally, even without the Secretary’s permis- He was again imprisoned in 1967, but refused sion, the confined person could at any time to participate in a sex offender treatment file a release petition. § 59–29a11. If the program, and thus remained incarcerated un- court found that the State could no longer til his parole in 1972. Diagnosed as a pedo- satisfy its burden under the initial commit- phile, Hendricks entered into, but then aban- ment standard, the individual would be freed doned, a treatment program. He testified from confinement. that despite having received professional B help for his pedophilia, he continued to har- bor sexual desires for children. Indeed, soon In 1984, Hendricks was convicted of taking after his 1972 parole, Hendricks began to ‘‘indecent liberties’’ with two 13–year–old abuse his own stepdaughter and stepson. boys. After serving nearly 10 years of his He forced the children to engage in sexual sentence, he was slated for release to a half- activity with him S over a period of approxi- way S house. Shortly before his scheduled 355 354 mately four years. Then, as noted above, release, however, the State filed a petition in Hendricks was convicted of ‘‘taking indecent state court seeking Hendricks’ civil confine- liberties’’ with two adolescent boys after he ment as a sexually violent predator. On attempted to fondle them. As a result of August 19, 1994, Hendricks appeared before that conviction, he was once again impris- the court with counsel and moved to dismiss oned, and was serving that sentence when he the petition on the grounds that the Act reached his conditional release date in Sep- violated various federal constitutional provi- tember 1994. sions. Although the court reserved ruling on the Act’s constitutionality, it concluded that Hendricks admitted that he had repeatedly there was probable cause to support a find- abused children whenever he was not con- ing that Hendricks was a sexually violent fined. He explained that when he ‘‘get[s] predator, and therefore ordered that he be stressed out,’’ he ‘‘can’t control the urge’’ to evaluated at the Larned State Security Hos- molest children. Id., at 172. Although Hen- pital. dricks recognized that his behavior harms Hendricks subsequently requested a jury children, and he hoped he would not sexually trial to determine whether he qualified as a molest children again, he stated that the only sexually violent predator. During that trial, sure way he could keep from sexually abus- Hendricks’ own testimony revealed a chilling ing children in the future was ‘‘to die.’’ Id., history of repeated child sexual molestation at 190. Hendricks readily agreed with the and abuse, beginning in 1955 when he ex- state physician’s diagnosis that he suffers 521 U.S. 357 KANSAS v. HENDRICKS 2079 Cite as 117 S.Ct. 2072 (1997) from pedophilia and that he is not cured of II the condition; indeed, he told the physician that ‘‘treatment is bull––––.’’ Id., at 153, A 190.2 [1, 2] Kansas argues that the Act’s defini- tion of ‘‘mental abnormality’’ satisfies ‘‘sub- The jury unanimously found beyond a rea- stantive’’ due process requirements. We sonable doubt that Hendricks was a sexually agree. Although freedom from physical re- violent predator. The trial court subse- straint ‘‘has always been at the core of the quently determined, as a matter of state law, liberty protected by the Due Process Clause that pedophilia qualifies as a ‘‘mental abnor- from arbitrary governmental action,’’ Foucha mality’’ as defined by S 356the Act, and thus v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, ordered Hendricks committed to the Secre- 1785, 118 L.Ed.2d 437 (1992), that liberty tary’s custody. interest is not absolute. The Court has rec- ognized that an individual’s constitutionally Hendricks appealed, claiming, among other protected interest in avoiding physical re- things, that application of the Act to him straint may be overridden even in the civil violated the Federal Constitution’s Due Pro- context: cess, Double Jeopardy, and Ex Post Facto Clauses. The Kansas Supreme Court ac- ‘‘[T]he liberty secured by the Constitution cepted Hendricks’ due process claim. 259 of the United States to every person within Kan., at 261, 912 P.2d, at 138. The court its jurisdiction does not S 357import an abso- declared that in order to commit a person lute right in each person to be, at all times involuntarily in a civil proceeding, a State is and in all circumstances, wholly free from required by ‘‘substantive’’ due process to restraint. There are manifold restraints to which every person is necessarily subject prove by clear and convincing evidence that for the common good. On any other basis the person is both (1) mentally ill, and (2) a organized society could not exist with safe- danger to himself or to others. Id., at 259, ty to its members.’’ Jacobson v. Massa- 912 P.2d, at 137. The court then determined chusetts, 197 U.S. 11, 26, 25 S.Ct. 358, 361, that the Act’s definition of ‘‘mental abnormal- 49 L.Ed. 643 (1905). ity’’ did not satisfy what it perceived to be this Court’s ‘‘mental illness’’ requirement in Accordingly, States have in certain narrow the civil commitment context. As a result, circumstances provided for the forcible civil the court held that ‘‘the Act violates Hen- detainment of people who are unable to con- dricks’ substantive due process rights.’’ Id., trol their behavior and who thereby pose a at 261, 912 P.2d, at 138. danger to the public health and safety. See, e.g., 1788 N.Y. Laws, ch. 31 (Feb. 9, 1788) The majority did not address Hendricks’ (permitting confinement of the ‘‘furiously ex post facto or double jeopardy claims. The mad’’); see also A. Deutsch, The Mentally Ill dissent, however, considered each of Hen- in America (1949) (tracing history of civil dricks’ constitutional arguments and rejected commitment in the 18th and 19th centuries); them. Id., at 264–294, 912 P.2d, at 140–156 G. Grob, Mental Institutions in America: So- (Larson, J., dissenting). cial Policy to 1875 (1973) (discussing colonial

2. In addition to Hendricks’ own testimony, the and pedophilia. Id., at 219–220. Dr. Befort jury heard from Hendricks’ stepdaughter and testified that Hendricks suffered from pedophilia stepson, who recounted the events surrounding and is likely to commit sexual offenses against their repeated sexual abuse at Hendricks’ hands. children in the future if not confined. Id., at App. 194–212. One of the girls to whom Hen- 247–248. He further opined that pedophilia dricks exposed himself in 1955 testified as well. qualifies as a ‘‘mental abnormality’’ within the Id., at 191–194. The State also presented testi- Act’s definition of that term. Id., at 263–264. mony from Lester Lee, a licensed clinical social worker who specialized in treating male sexual Finally, Hendricks offered testimony from Dr. offenders, and Dr. Charles Befort, the chief psy- William S. Logan, a forensic psychiatrist, who chologist at Larned State Hospital. Lee testified stated that it was not possible to predict with any that Hendricks had a diagnosis of personality degree of accuracy the future dangerousness of a trait disturbance, passive-aggressive personality, sex offender. Id., at 328–331. 2080 117 SUPREME COURT REPORTER 521 U.S. 357 and early American civil commitment stat- 478 U.S. 364, 366, 106 S.Ct. 2988, 2990–2991, utes). We have consistently upheld such in- 92 L.Ed.2d 296 (1986) (Illinois statute per- voluntary commitment statutes provided the mitting commitment of ‘‘mentally ill’’ and confinement takes place pursuant to proper dangerous individual); Minnesota ex rel. procedures and evidentiary standards. See Pearson v. Probate Court of Ramsey Cty., Foucha, supra, at 80, 112 S.Ct., at 1785–1786; 309 U.S. 270, 271–272, 60 S.Ct. 523, 524–525, Addington v. Texas, 441 U.S. 418, 426–427, 84 L.Ed. 744 (1940) (Minnesota statute per- 99 S.Ct. 1804, 1809–1810, 60 L.Ed.2d 323 mitting commitment of dangerous individual (1979). It thus cannot be said that the invol- with ‘‘psychopathic personality’’). These untary civil confinement of a limited subclass added statutory requirements serve to limit of dangerous persons is contrary to our un- involuntary civil confinement to those who derstanding of ordered liberty. Cf. id., at suffer from a volitional impairment rendering 426, 99 S.Ct., at 1809–1810. them dangerous beyond their control. The The challenged Act unambiguously re- Kansas Act is plainly of a kind with these quires a finding of dangerousness either to other civil commitment statutes: It requires one’s self or to others as a prerequisite to a finding of future dangerousness, and then involuntary confinement. Commitment pro- links that finding to the existence of a ‘‘men- ceedings can be initiated only when a person tal abnormality’’ or ‘‘personality disorder’’ ‘‘has been convicted of or charged with a that makes it difficult, if not impossible, for sexually violent offense,’’ and ‘‘suffers from a the person to control his dangerous behavior. mental abnormality or personality disorder Kan. Stat. Ann. § 59–29a02(b) (1994). The which makes the person likely to engage in precommitment requirement of a ‘‘mental ab- the predatory acts of sexual violence.’’ Kan. normality’’ or ‘‘personality disorder’’ is con- Stat. Ann. § 59–29a02(a) (1994). The statute sistent with the requirements of these other thus requires proof of more than a mere statutes that we have upheld in that it nar- predisposition to violence; rather, it requires rows the class of persons eligible for confine- ment to those who are unable to control their evidence of past sexually violent behavior dangerousness. and a present mental condition that creates a likelihood of such conduct in the future if the Hendricks nonetheless argues that our earlier cases dictate a finding of ‘‘mental person is not incaSpacitated.358 As we have recognized, ‘‘[p]revious instances of violent illness’’ as a prerequisite for civil commit- behavior are an important indicator of future ment, citing Foucha and Addington. He violent tendencies.’’ Heller v. Doe, 509 U.S. then asSserts359 that a ‘‘mental abnormality’’ is 312, 323, 113 S.Ct. 2637, 2644, 125 L.Ed.2d not equivalent to a ‘‘mental illness’’ because it 257 (1993); see also Schall v. Martin, 467 is a term coined by the Kansas Legislature, U.S. 253, 278, 104 S.Ct. 2403, 2417, 81 rather than by the psychiatric community. L.Ed.2d 207 (1984) (explaining that ‘‘from a Contrary to Hendricks’ assertion, the term legal point of view there is nothing inherently ‘‘mental illness’’ is devoid of any talismanic unattainable about a prediction of future significance. Not only do ‘‘psychiatrists dis- agree widely and frequently on what consti- criminal conduct’’). tutes mental illness,’’ Ake v. Oklahoma, 470 [3] A finding of dangerousness, standing U.S. 68, 81, 105 S.Ct. 1087, 1095, 84 L.Ed.2d alone, is ordinarily not a sufficient ground 53 (1985), but the Court itself has used a upon which to justify indefinite involuntary variety of expressions to describe the mental commitment. We have sustained civil com- condition of those properly subject to civil mitment statutes when they have coupled confinement. See, e.g., Addington, supra, at proof of dangerousness with the proof of 425–426, 99 S.Ct., at 1808–1810 (using the some additional factor, such as a ‘‘mental terms ‘‘emotionally disturbed’’ and ‘‘mentally illness’’ or ‘‘mental abnormality.’’ See, e.g., ill’’); Jackson v. Indiana, 406 U.S. 715, 732, Heller, supra, at 314–315, 113 S.Ct., at 2639– 737, 92 S.Ct. 1845, 1855, 1857–1858, 32 2640 (Kentucky statute permitting commit- L.Ed.2d 435 (1972) (using the terms ‘‘incom- ment of ‘‘mentally retarded’’ or ‘‘mentally ill’’ petency’’ and ‘‘insanity’’); cf. Foucha, 504 and dangerous individual); Allen v. Illinois, U.S., at 88, 112 S.Ct., at 1789–1790 (O’CON- 521 U.S. 361 KANSAS v. HENDRICKS 2081 Cite as 117 S.Ct. 2072 (1997) NOR, J., concurring in part and concurring psychiatric profession itself classifies as a in judgment) (acknowledging State’s authori- serious mental disorder. See, e.g., id., at ty to commit a person when there is ‘‘some 524–525, 527–528; 1 American Psychiatric medical justification for doing so’’). Association, Treatments of Psychiatric Disor- ders 617–633 (1989); Abel & Rouleau, Male Indeed, we have never required state leg- Sex Offenders, in Handbook of Outpatient islatures to adopt any particular nomencla- Treatment of Adults 271 (M. Thase, B. Edel- ture in drafting civil commitment statutes. stein, & M. Hersen eds. 1990).3 Hendricks Rather, we have traditionally left to legisla- even conceded that, when he becomes tors the task of defining terms of a medical ‘‘stressed out,’’ he cannot ‘‘control the urge’’ nature that have legal significance. Cf. to molest children. App. 172. This admitted Jones v. United States, 463 U.S. 354, 365, n. lack of volitional control, coupled with a pre- 13, 103 S.Ct. 3043, 3050, n. 13, 77 L.Ed.2d diction of future dangerousness, adequately 694 (1983). As a consequence, the States distinguishes Hendricks from other danger- have, over the years, developed numerous ous persons who are perhaps more properly specialized terms to define mental health dealt with exclusively through criminal pro- concepts. Often, those definitions do not fit ceedings. Hendricks’ diagnosis as a pedo- precisely with the definitions employed by phile, which qualifies as a ‘‘mental abnormali- the medical community. The legal defini- ty’’ under the Act, thus plainly suffices for tions of ‘‘insanity’’ and ‘‘competency,’’ for ex- due process purposes. ample, vary substantially from their psychi- atric counterparts. See, e.g., Gerard, The Usefulness of the Medical Model to the Le- B gal System, 39 Rutgers L.Rev. 377, 391–394 [6] We granted Hendricks’ cross-petition (1987) (discussing differing purposes of legal to determine whether the Act violates the system and the medical profession in recog- Constitution’s double jeopardy S 361prohibition nizing mental illness). Legal definitions, or its ban on ex post facto lawmaking. The however, which must ‘‘take into account such thrust of Hendricks’ argument is that the Act issues as individual responsibility TTT and establishes criminal proceedings; hence con- competency,’’ need not mirror those ad- finement under it necessarily constitutes vanced by the medical profession. American punishment. He contends that where, as Psychiatric Association, Diagnostic and Sta- here, newly enacted ‘‘punishment’’ is predi- tistical Manual of Mental Disorders xxiii, cated upon past conduct for which he has xxvii (4th ed.1994). already been convicted and forced to serve a prison sentence, the Constitution’s Double [4, 5] S 360To the extent that the civil com- Jeopardy and Ex Post Facto Clauses are mitment statutes we have considered set violated. We are unpersuaded by Hendricks’ forth criteria relating to an individual’s ina- argument that Kansas has established crimi- bility to control his dangerousness, the Kan- nal proceedings. sas Act sets forth comparable criteria and Hendricks’ condition doubtless satisfies those [7] The categorization of a particular pro- criteria. The mental health professionals ceeding as civil or criminal ‘‘is first of all a who evaluated Hendricks diagnosed him as question of statutory construction.’’ Allen, suffering from pedophilia, a condition the 478 U.S., at 368, 106 S.Ct., at 2992. We must

3. We recognize, of course, that psychiatric pro- drafting such statutes. Cf. Jones v. United States, fessionals are not in complete harmony in cast- 463 U.S. 354, 365, n. 13, 103 S.Ct. 3043, 3050, n. ing pedophilia, or paraphilias in general, as 13, 77 L.Ed.2d 694 (1983). As we have ex- ‘‘mental illnesses.’’ Compare Brief for American plained regarding congressional enactments, Psychiatric Association as Amicus Curiae 26 with when a legislature ‘‘undertakes to act in areas Brief for Menninger Foundation et al. as Amici fraught with medical and scientific uncertainties, Curiae 22–25. These disagreements, however, legislative options must be especially broad and do not tie the State’s hands in setting the bounds courts should be cautious not to rewrite legisla- of its civil commitment laws. In fact, it is pre- cisely where such disagreement exists that legis- tion.’’ Id., at 370, 103 S.Ct., at 3053 (internal latures have been afforded the widest latitude in quotation marks and citation omitted). 2082 117 SUPREME COURT REPORTER 521 U.S. 361 initially ascertain whether the legislature uisite for commitment—persons absolved of meant the statute to establish ‘‘civil’’ pro- criminal responsibility may nonetheless be ceedings. If so, we ordinarily defer to the subject to confinement under the Act. See legislature’s stated intent. Here, Kansas’ ob- Kan. Stat. Ann. § 59–29a03(a) (1994). An jective to create a civil proceeding is evi- absence of the necessary criminal responsi- denced by its placement of the Act within the bility suggests that the State is not seeking Kansas probate code, instead of the criminal retribution for a past misdeed. Thus, the code, Kan. Stat. Ann., Article 29 (1994) fact that the Act may be ‘‘tied to criminal (‘‘Care and Treatment for Mentally Ill Per- activity’’ is ‘‘insufficient to render the sta- sons’’), as well as its description of the Act as tut[e] punitive.’’ United States v. Ursery, creating a ‘‘civil commitment procedure,’’ 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 § 59–29a01 (emphasis added). Nothing on (1996). the face of the statute suggests that the legislature sought to create anything other [9] Moreover, unlike a criminal statute, than a civil commitment scheme designed to no finding of scienter is required to commit protect the public from harm. an individual who is found to be a sexually violent predator; instead, the commitment [8] Although we recognize that a ‘‘civil determination is made based on a ‘‘mental label is not always dispositive,’’ Allen, supra, abnormality’’ or ‘‘personality disorder’’ rather at 369, 106 S.Ct., at 2992, we will reject the than on one’s criminal intent. The existence legislature’s manifest intent only where a of a scienter requirement is customarily an party challenging the statute provides ‘‘the important element in distinguishing criminal clearest proof’’ that ‘‘the statutory scheme from civil statutes. See Kennedy v. Mendo- [is] so punitive either in purpose or effect as za–Martinez, 372 U.S. 144, 168, 83 S.Ct. 554, to negate [the State’s] intention’’ to deem it 567–568, 9 L.Ed.2d 644 (1963). The absence ‘‘civil,’’ United States v. Ward, 448 U.S. 242, of such a requirement here is evidence that 248–249, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 confinement under the statute is not intend- (1980). In those limited circumstances, we ed to be retributive. will consider the statute to have established Nor can it be said that the legislature criminal proceedings for constitutional pur- intended the Act to function as a deterrent. poses. Hendricks, however, has failed to Those persons committed under the Act are, satisfy this heavy burden. by definition, suffering from a ‘‘mental abnor- As a threshold matter, commitment under mality’’ or a ‘‘personality disorder’’ that pre- the Act does not implicate either of the two vents them from exercising adequate control primary objectives of criminal over their behavior. Such persons are there-

S 362punishment: retribution or deterrence. fore unlikely to be deterred by the threat of The Act’s purpose is not retributive because S 363confinement. And the conditions sur- it does not affix culpability for prior criminal rounding that confinement do not suggest a conduct. Instead, such conduct is used sole- punitive purpose on the State’s part. The ly for evidentiary purposes, either to demon- State has represented that an individual con- strate that a ‘‘mental abnormality’’ exists or fined under the Act is not subject to the to support a finding of future dangerousness. more restrictive conditions placed on state We have previously concluded that an Illinois prisoners, but instead experiences essentially statute was nonpunitive even though it was the same conditions as any involuntarily com- triggered by the commission of a sexual as- mitted patient in the state mental institution. sault, explaining that evidence of the prior App. 50–56, 59–60. Because none of the criminal conduct was ‘‘received not to punish parties argues that people institutionalized past misdeeds, but primarily to show the under the Kansas general civil commitment accused’s mental condition and to predict statute are subject to punitive conditions, future behavior.’’ Allen, supra, at 371, 106 even though they may be involuntarily con- S.Ct., at 2993. In addition, the Kansas Act fined, it is difficult to conclude that persons does not make a criminal conviction a prereq- confined under this Act are being ‘‘punished.’’ 521 U.S. 365 KANSAS v. HENDRICKS 2083 Cite as 117 S.Ct. 2072 (1997) [10] Although the civil commitment the same standards as required for the initial scheme at issue here does involve an affirma- confinement. Ibid. This requirement again tive restraint, ‘‘the mere fact that a person is demonstrates that Kansas does not intend an detained does not inexorably lead to the con- individual committed pursuant to the Act to clusion that the government has imposed remain confined any longer than he suffers punishment.’’ United States v. Salerno, 481 from a mental abnormality rendering him U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 unable to control his dangerousness. L.Ed.2d 697 (1987). The State may take Hendricks next contends that the State’s measures to restrict the freedom of the dan- use of procedural safeguards traditionally gerously mentally ill. This is a legitimate found in criminal trials makes the proceed- nonpunitive governmental objective and has ings here criminal rather than civil. In Al- been historically so regarded. Cf. id., at 747, len, we confronted a similar argument. 107 S.Ct., at 2101–2102. The Court has, in There, the petitioner ‘‘place[d] great reliance fact, cited the confinement of ‘‘mentally un- on the fact that proceedings under the Act stable individuals who present a danger to are accompanied by procedural safeguards the public’’ as one classic example of nonpun- usually found in criminal trials’’ to argue that itive detention. Id., at 748–749, 107 S.Ct., at the proceedings were civil in name only. 478 2102–2103. If detention for the purpose of U.S., at 371, 106 S.Ct., at 2993. We rejected protecting the community from harm neces- that argument, however, explaining that the sarily constituted punishment, then all invol- State’s decision ‘‘to provide some of the safe- untary civil commitments would have to be guards applicable in criminal trials cannot considered punishment. But we have never itself turn these proceedings into criminal so held. prosecutions.’’ Id., at 372, 106 S.Ct., at 2993. Hendricks focuses on his confinement’s po- The numerous procedural and evidentiary tentially indefinite duration as evidence of protections afforded here demonstrate that the State’s punitive intent. That focus, how- the Kansas Legislature has taken great care ever, is misplaced. Far from any punitive to confine only a narrow class of particularly objective, the confinement’s duration is in- dangerous individuals, and then only after stead linked to the stated purposes of the meeting the strictest procedural standards. commitment, namely, to hold the person until That Kansas chose to afford such procedural his mental abnormality no longer causes him protections does not S 365transform a civil com- to be a threat to others. Cf. Jones, 463 U.S., mitment proceeding into a criminal prosecu- at 368, 103 S.Ct., at 3051–3052 (noting with tion. approval that ‘‘because it is impossible to Finally, Hendricks argues that the Act is predict how long it will take for any given necessarily punitive because it fails to offer individual to recover [from insanSity]364—or any legitimate ‘‘treatment.’’ Without such indeed whether he will ever recover—Con- treatment, Hendricks asserts, confinement gress has chosen TTT to leave the length of under the Act amounts to little more than commitment indeterminate, subject to peri- disguised punishment. Hendricks’ argument odic review of the patients’ suitability for assumes that treatment for his condition is release’’). If, at any time, the confined per- available, but that the State has failed (or son is adjudged ‘‘safe to be at large,’’ he is refused) to provide it. The Kansas Supreme statutorily entitled to immediate release. Court, however, apparently rejected this as- Kan. Stat. Ann. § 59–29a07 (1994). sumption, explaining: Furthermore, commitment under the Act ‘‘It is clear that the overriding concern is only potentially indefinite. The maximum of the legislature is to continue the segre- amount of time an individual can be incapaci- gation of sexually violent offenders from tated pursuant to a single judicial proceeding the public. Treatment with the goal of is one year. § 59–29a08. If Kansas seeks to reintegrating them into society is inciden- continue the detention beyond that year, a tal, at best. The record reflects that treat- court must once again determine beyond a ment for sexually violent predators is all reasonable doubt that the detainee satisfies but nonexistent. The legislature concedes 2084 117 SUPREME COURT REPORTER 521 U.S. 365

that sexually violent predators are not ment of the dangerously insane when no amenable to treatment under [the existing acceptable treatment existed. To conclude Kansas involuntary commitment statute]. otherwise would obligate a State to release If there is nothing to treat under [that certain confined individuals who were both statute], then there is no mental illness. mentally ill and dangerous simply because In that light, the provisions of the Act for they could not be successfully treated for treatment appear somewhat disingenuous.’’ their afflictions. Cf. Greenwood v. United 259 Kan., at 258, 912 P.2d, at 136. States, 350 U.S. 366, 375, 76 S.Ct. 410, 415, It is possible to read this passage as a deter- 100 L.Ed. 412 (1956) (‘‘The fact that at pres- mination that Hendricks’ condition was un- ent there may be little likelihood of recovery treatable under the existing Kansas civil does not defeat federal power to make this commitment statute, and thus the Act’s sole initial commitment of the petitioner’’); purpose was incapacitation. Absent a treata- O’Connor v. Donaldson, 422 U.S. 563, 584, 95 ble mental illness, the Kansas court conclud- S.Ct. 2486, 2498, 45 L.Ed.2d 396 (1975) ed, Hendricks could not be detained against (Burger, C.J., concurring) (‘‘[I]t remains a his will. stubborn fact that there are many forms of Accepting the Kansas court’s apparent de- mental illness which are not understood, termination that treatment is not possible for some which are untreatable in the sense that this category of individuals does not obligate no effective therapy has yet been discovered us to adopt its legal conclusions. We have for them, and that rates of ‘cure’ are general- already observed that, under the appropriate ly low’’). circumstances and when accompanied by Alternatively, the Kansas Supreme Court’s proper procedures, incapacitation S 366may be a legitimate end of the civil law. See Allen, opinion can be read to conclude that Hen- supra, at 373, 106 S.Ct., at 2994; Salerno, dricks’ condition is treatable, but S 367that 481 U.S., at 748–749, 107 S.Ct., at 2102–2103. treatment was not the State’s ‘‘overriding Accordingly, the Kansas court’s determina- concern,’’ and that no treatment was being tion that the Act’s ‘‘overriding concern’’ was provided (at least at the time Hendricks was the continued ‘‘segregation of sexually violent committed). 259 Kan., at 258, 912 P.2d, at offenders’’ is consistent with our conclusion 136. See also ibid. (‘‘It is clear that the that the Act establishes civil proceedings, 259 primary objective of the Act is to continue Kan., at 258, 912 P.2d, at 136, especially incarceration and not to provide treatment’’). when that concern is coupled with the State’s Even if we accept this determination that the ancillary goal of providing treatment to those provision of treatment was not the Kansas offenders, if such is possible. While we have Legislature’s ‘‘overriding’’ or ‘‘primary’’ pur- upheld state civil commitment statutes that pose in passing the Act, this does not rule aim both to incapacitate and to treat, see out the possibility that an ancillary purpose Allen, supra, we have never held that the of the Act was to provide treatment, and it Constitution prevents a State from civilly does not require us to conclude that the Act detaining those for whom no treatment is is punitive. Indeed, critical language in the available, but who nevertheless pose a dan- Act itself demonstrates that the Secretary, ger to others. A State could hardly be seen under whose custody sexually violent preda- as furthering a ‘‘punitive’’ purpose by invol- tors are committed, has an obligation to pro- untarily confining persons afflicted with an vide treatment to individuals like Hendricks. untreatable, highly contagious disease. Ac- § 59–29a07(a) (‘‘If the court or jury deter- cord, Compagnie Francaise de Navigation a mines that the person is a sexually violent Vapeur v. Louisiana Bd. of Health, 186 U.S. predator, the person shall be committed to 380, 22 S.Ct. 811, 46 L.Ed. 1209 (1902) (per- the custody of the secretary of social and mitting involuntary quarantine of persons rehabilitation services for control, care and suffering from communicable diseases). treatment until such time as the person’s Similarly, it would be of little value to require mental abnormality or personality disorder treatment as a precondition for civil confine- has so changed that the person is safe to be 521 U.S. 369 KANSAS v. HENDRICKS 2085 Cite as 117 S.Ct. 2072 (1997) at large’’ (emphasis added)). Other of the Where the State has ‘‘disavowed any puni- Act’s sections echo this obligation to provide tive intent’’; limited confinement to a small treatment for committed persons. See, e.g., segment of particularly dangerous individu- § 59–29a01 (establishing civil commitment als; provided strict procedural safeguards; procedure ‘‘for the long-term care and treat- directed that confined persons be segregated ment of the sexually violent predator’’); from the general prison population and af- § 59–29a09 (requiring the confinement to forded the same status as others who have ‘‘conform to constitutional requirements for been civilly committed; recommended treat- care and treatment’’). Thus, as in Allen, ment if such is possible; and permitted im- ‘‘the State has a statutory obligation to pro- mediate release upon a showing S 369that the vide ‘care and treatment for [persons ad- individual is no longer dangerous or mentally judged sexually dangerous] designed to ef- impaired, we cannot say that it acted with punitive intent. We therefore hold that the fect recovery,’ ’’ 478 U.S., at 369, 106 S.Ct., at Act does not establish criminal proceedings 2992 (quoting Ill.Rev.Stat., ch. 38, ¶ 105–8 and that involuntary confinement pursuant to (1985)), and we may therefore conclude that the Act is not punitive. Our conclusion that ‘‘the State has TTT provided for the treat- the Act is nonpunitive thus removes an es- ment of those it commits,’’ 478 U.S., at 370, sential prerequisite for both Hendricks’ dou- 106 S.Ct., at 2992. ble jeopardy and ex post facto claims. Although the treatment program initially offered Hendricks may have seemed some- 1 what meager, it must be remembered that he The Double Jeopardy Clause provides: was the first person committed under the ‘‘[N]or shall any person be subject for the S Act. That the State did not have all of its 368 same offence to be twice put in jeopardy of treatment procedures in place is thus not life or limb.’’ Although generally understood surprising. What is significant, however, is to preclude a second prosecution for the that Hendricks was placed under the super- same offense, the Court has also interpreted vision of the Kansas Department of Health this prohibition to prevent the State from and Social and Rehabilitative Services, ‘‘punishing twice, or attempting a second housed in a unit segregated from the general time to punish criminally, for the same of- prison population and operated not by em- fense.’’ Witte v. United States, 515 U.S. 389, ployees of the Department of Corrections, 396, 115 S.Ct. 2199, 2204, 132 L.Ed.2d 351 but by other trained individuals.4 And, be- (1995) (emphasis and internal quotation fore this Court, Kansas declared ‘‘[a]bsolute- marks omitted). Hendricks argues that, as ly’’ that persons committed under the Act are applied to him, the Act violates double jeop- 1 now receiving in the neighborhood of ‘‘31- /2 ardy principles because his confinement un- hours of treatment per week.’’ Tr. of Oral der the Act, imposed after a conviction and a Arg. 14–15, 16.5 term of incarceration, amounted to both a

4. We have explained that the States enjoy wide 5. Indeed, we have been informed that in an latitude in developing treatment regimens. August 28, 1995, hearing on Hendricks’ petition Youngberg v. Romeo, 457 U.S. 307, 317, 102 S.Ct. for state habeas corpus relief, the trial court, 2452, 2458–2459, 73 L.Ed.2d 28 (1982) (observ- over admittedly conflicting testimony, ruled: ing that the State ‘‘has considerable discretion in ‘‘[T]he allegation that no treatment is being pro- determining the nature and scope of its responsi- vided to any of the petitioners or other persons bilities’’). In Allen v. Illinois, 478 U.S. 364, 106 committed to the program designated as a sexual S.Ct. 2988, 92 L.Ed.2d 296 (1986), for example, predator treatment program is not true. I find we concluded that ‘‘the State serves its purpose that they are receiving treatment.’’ App. 453– of treating rather than punishing sexually dan- 454. Thus, to the extent that treatment is avail- gerous persons by committing them to an institu- able for Hendricks’ condition, the State now tion expressly designed to provide psychiatric appears to be providing it. By furnishing such care and treatment.’’ Id., at 373, 106 S.Ct., at treatment, the Kansas Legislature has indicated 2994 (emphasis deleted). By this measure, Kan- that treatment, if possible, is at least an ancillary sas has doubtless satisfied its obligation to pro- goal of the Act, which easily satisfies any test for vide available treatment. determining that the Act is not punitive. 2086 117 SUPREME COURT REPORTER 521 U.S. 369 second prosecution and a second punishment previously charged conduct) for evidentiary for the same offense. We disagree. purposes to determine whether a person suf- [11] Because we have determined that fers from a ‘‘mental abnormality’’ or ‘‘person- the Kansas Act is civil in nature, initiation of ality disorder’’ and also poses a threat to the its commitment proceedings does not consti- public. Accordingly, we are unpersuaded by tute a second prosecution. Cf. Jones v. Hendricks’ novel application of the Blockbur- United States, 463 U.S. 354, 103 S.Ct. 3043, ger test and conclude that the Act does not 77 L.Ed.2d 694 (1983) (permitting involun- violate the Double Jeopardy Clause. tary civil commitment after verdict of not guilty by reason of insanity). Moreover, as commitment under the Act is not tantamount 2 to ‘‘punishment,’’ Hendricks’ involuntary de- [13] Hendricks’ ex post facto claim is tention does not violate the Double Jeopardy similarly flawed. The Ex Post Facto Clause, Clause, even though that confinement may which ‘‘ ‘forbids the application of any new follow a prison term. Indeed, in Baxstrom v. punitive measure to a crime already consum- Herold, 383 U.S. 107, 86 S.Ct. 760, 15 mated,’ ’’ has been interpreted to pertain ex- L.Ed.2d 620 (1966), we expressly recognized clusively to penal statutes. California Dept. that civil commitment could follow the expi- of Corrections v. Morales, 514 U.S. 499, 505, ration of a prison term without offending 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 (1995) double jeopardy principles. We reasoned (quoting Lindsey v. Washington, 301 U.S. that ‘‘there is no conceivable basis for distin- 397, 401, 57 S.Ct. 797, 799, 81 L.Ed. 1182 guishing the commitment of a person who is (1937)). As we have previously determined, nearing the end of a penal S term from all 370 the Act does not impose punishment; thus, other civil commitments.’’ Id., at 111–112, 86 S.Ct., at 763. If an individual otherwise its application does not raise S 371ex post facto meets the requirements for involuntary civil concerns. Moreover, the Act clearly does commitment, the State is under no obligation not have retroactive effect. Rather, the Act to release that individual simply because the permits involuntary confinement based upon detention would follow a period of incarcera- a determination that the person currently tion. both suffers from a ‘‘mental abnormality’’ or ‘‘personality disorder’’ and is likely to pose a [12] Hendricks also argues that even if future danger to the public. To the extent the Act survives the ‘‘multiple punishments’’ that past behavior is taken into account, it is test, it nevertheless fails the ‘‘same ele- ments’’ test of Blockburger v. United States, used, as noted above, solely for evidentiary 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 purposes. Because the Act does not crimi- (1932). Under Blockburger, ‘‘where the nalize conduct legal before its enactment, nor same act or transaction constitutes a viola- deprive Hendricks of any defense that was tion of two distinct statutory provisions, the available to him at the time of his crimes, the test to be applied to determine whether there Act does not violate the Ex Post Facto are two offenses or only one, is whether each Clause. provision requires proof of a fact which the other does not.’’ Id., at 304, 52 S.Ct., at 182. III The Blockburger test, however, simply does not apply outside of the successive prosecu- We hold that the Kansas Sexually Violent tion context. A proceeding under the Act Predator Act comports with due process re- does not define an ‘‘offense,’’ the elements of quirements and neither runs afoul of double which can be compared to the elements of an jeopardy principles nor constitutes an exer- offense for which the person may previously cise in impermissible ex post facto lawmak- have been convicted. Nor does the Act make ing. Accordingly, the judgment of the Kan- the commission of a specified ‘‘offense’’ the sas Supreme Court is reversed. basis for invoking the commitment proceed- ings. Instead, it uses a prior conviction (or It is so ordered. 521 U.S. 373 KANSAS v. HENDRICKS 2087 Cite as 117 S.Ct. 2072 (1997) Justice KENNEDY, concurring. Statistical Manual of Mental Disorders 524– I join the opinion of the Court in full and 525, 527–528 (4th ed. 1994). add these additional comments. Notwithstanding its civil attributes, the practical effect of the Kansas law may be to Though other issues were argued to us, as impose confinement for life. At this stage of the action has matured it turns on whether medical knowledge, although future treat- the Kansas statute is an law. A ex post facto ments cannot be predicted, psychiatrists or law enacted after commission of the offense other professionals engaged in treating pedo- and which punishes the offense by extending philia may be reluctant to find measurable the term of confinement is a textbook exam- success in treatment even after a long period ple of an ex post facto law. If the object or and may be unable to predict that no serious purpose of the Kansas law had been to pro- danger will come from release of the detain- vide treatment but the treatment provisions ee. were adopted as a sham or mere pretext, A common response to this may be, ‘‘A life there would have been an indication of the term is exactly what the sentence should forbidden purpose to punish. The Court’s have been anyway,’’ or, in the words of a opinion gives a full and complete explanation Kansas task force member, ‘‘SO BE IT.’’ why an ex post facto challenge based on this Testimony of Jim Blaufuss, App. 503. The contention cannot succeed in the action be- point, however, is not S 373how long Hendricks fore us. All this, however, concerns Hen- and others like him should serve a criminal dricks alone. My brief, further comment is sentence. With his criminal record, after all, a life term may well have been the only to caution against dangers inSherent372 when a civil confinement law is used in conjunction sentence appropriate to protect society and vindicate the wrong. The concern instead is with the criminal process, whether or not the whether it is the criminal system or the civil law is given retroactive application. system which should make the decision in the It seems the dissent, too, would validate first place. If the civil system is used simply the Kansas statute as to persons who com- to impose punishment after the State makes mitted the crime after its enactment, and it an improvident plea bargain on the criminal might even validate the statute as to Hen- side, then it is not performing its proper dricks, assuming a reasonable level of treat- function. These concerns persist whether ment. As all Members of the Court seem to the civil confinement statute is put on the agree, then, the power of the State to confine books before or after the offense. We should persons who, by reason of a mental disease bear in mind that while incapacitation is a or mental abnormality, constitute a real, con- goal common to both the criminal and civil tinuing, and serious danger to society is well systems of confinement, retribution and gen- established. Addington v. Texas, 441 U.S. eral deterrence are reserved for the criminal 418, 426–427, 99 S.Ct. 1804, 1809–1810, 60 system alone. L.Ed.2d 323 (1979). Confinement of such On the record before us, the Kansas civil individuals is permitted even if it is pursuant statute conforms to our precedents. If, how- to a statute enacted after the crime has been ever, civil confinement were to become a committed and the offender has begun serv- mechanism for retribution or general deter- rence, or if it were shown that mental abnor- ing, or has all but completed serving, a penal mality is too imprecise a category to offer a sentence, provided there is no object or pur- solid basis for concluding that civil detention pose to punish. See Baxstrom v. Herold, 383 is justified, our precedents would not suffice U.S. 107, 111–112, 86 S.Ct. 760, 762–763, 15 to validate it. L.Ed.2d 620 (1966). The Kansas law, with its attendant protections, including yearly re- Justice BREYER, with whom Justice view and review at any time at the instance STEVENS and Justice SOUTER join, and of the person confined, is within this pattern with whom Justice GINSBURG joins as to and tradition of civil confinement. In this Parts II and III, dissenting. action, the mental abnormality—pedophilia— I agree with the majority that the Kansas is at least described in the DSM–IV. Ameri- Sexually Violent Predator Act’s ‘‘definition of can Psychiatric Association, Diagnostic and ‘mental abnormality’ ’’ satisfies the ‘‘substan- 2088 117 SUPREME COURT REPORTER 521 U.S. 373 tive’’ requirements of the Due Process tion gives States a degree of leeway in mak- Clause. Ante, at 2079. Kansas, however, ing this kind of determination. Ante, at concedes that Hendricks’ condition is treata- 2081; Foucha, supra, at 87, 112 S.Ct., at ble; yet the Act did not provide Hendricks 1789 (O’CONNOR, J., concurring in part and (or others like him) with any treatment until concurring in judgment); Jones v. United after his release date from prison and only States, 463 U.S. 354, 365, n. 13, 103 S.Ct. inadequate treatment thereafter. These, and 3043, 3050, n. 13, 77 L.Ed.2d 694 (1983). certain other, special features of the Act But, because I do not subscribe to all of its convince me that it was not simply an effort reasoning, I shall set forth three sets of to commit Hendricks civilly, but rather an circumstances that, taken together, convince effort to inflict further punishment upon him. me that Kansas has acted within the limits The Ex Post Facto Clause therefore proShi- that the Due Process Clause substantively sets. bits374 the Act’s application to Hendricks, who committed his crimes prior to its enact- S 375First, the psychiatric profession itself ment. classifies the kind of problem from which Hendricks suffers as a serious mental disor- I der. E.g., American Psychiatric Assn., Di- I begin with the area of agreement. This agnostic and Statistical Manual of Mental Disorders 524–525, 527–528 (4th ed. 1994) Court has held that the civil commitment of a (describing range of paraphilias and discuss- ‘‘mentally ill’’ and ‘‘dangerous’’ person does ing how stress aggravates pedophilic behav- not automatically violate the Due Process ior); Abel & Rouleau, Male Sex Offenders, Clause provided that the commitment takes in Handbook of Outpatient Treatment of place pursuant to proper procedures and evi- Adults 271 (M. Thase, B. Edelstein, & M. dentiary standards. See Foucha v. Louisi- Hersen eds.1990). I concede that profes- ana, 504 U.S. 71, 80, 112 S.Ct. 1780, 1785– sionals also debate whether or not this dis- 1786, 118 L.Ed.2d 437 (1992); Addington v. order should be called a mental ‘‘illness.’’ Texas, 441 U.S. 418, 426–427, 99 S.Ct. 1804, See R. Slovenko, Psychiatry and Criminal 1809–1810, 60 L.Ed.2d 323 (1979). The Kan- Culpability 57 (1995) (citing testimony that sas Supreme Court, however, held that the paraphilias are not mental illnesses); Due Process Clause forbids application of the Schopp & Sturgis, Sexual Predators and Le- Act to Hendricks for ‘‘substantive’’ reasons, gal Mental Illness for Civil Commitment, 13 i.e., irrespective of the procedures or eviden- Behav. Sci. & The Law 437, 451–452 (1995) tiary standards used. The court reasoned (same). Compare Brief for American Psy- that Kansas had not satisfied the ‘‘mentally chiatric Association as Amicus Curiae 26 ill’’ requirement of the Due Process Clause (mental illness requirement not satisfied) because Hendricks was not ‘‘mentally ill.’’ with Brief for Menninger Clinic et al. as In re Hendricks, 259 Kan. 246, 260–261, 912 Amici Curiae 22–25 (requirement is satis- P.2d 129, 137–138 (1996). Moreover, Kansas fied). But the very presence and vigor of had not satisfied what the court believed was this debate is important. The Constitution an additional ‘‘substantive due process’’ re- permits a State to follow one reasonable quirement, namely, the provision of treat- professional view, while rejecting another. ment. Id., at 257–258, 912 P.2d, at 136. I See Addington v. Texas, supra, at 431, 99 shall consider each of these matters briefly. S.Ct., at 1812. The psychiatric debate, therefore, helps to inform the law by setting A the bounds of what is reasonable, but it In my view, the Due Process Clause per- cannot here decide just how States must mits Kansas to classify Hendricks as a men- write their laws within those bounds. See tally ill and dangerous person for civil com- Jones, supra, at 365, n. 13, 103 S.Ct., at mitment purposes. Allen v. Illinois, 478 3050, n. 13. U.S. 364, 370–371, 373–375, 106 S.Ct. 2988, Second, Hendricks’ abnormality does not 2992–2993, 2994–2995, 92 L.Ed.2d 296 (1986). consist simply of a long course of antisocial I agree with the majority that the Constitu- behavior, but rather it includes a specific, 521 U.S. 377 KANSAS v. HENDRICKS 2089 Cite as 117 S.Ct. 2072 (1997) serious, and highly unusual inability to con- when he gets ‘‘stressed out’’ confirmed Dr. trol his actions. (For example, Hendricks Befort’s diagnosis. testified that, when he gets ‘‘stressed out,’’ he cannot ‘‘control the urge’’ to molest chil- Because (1) many mental health profes- dren, see ante, at 2078.) The law traditional- sionals consider pedophilia a serious mental ly has considered this kind of abnormality disorder; and (2) Hendricks suffers from a akin to insanity for purposes of confinement. classic case of irresistible impulse, namely, See, e. g., Minnesota ex rel. Pearson v. Pro- he is so afflicted with pedophilia that he bate Court of Ramsey Cty., 309 U.S. 270, 274, cannot ‘‘control the urge’’ to molest children; 60 S.Ct. 523, 525–526, 84 L.Ed. 744 (1940) and (3) his pedophilia presents a serious (upholding against a due process challenge S 377danger to those children, I believe that the civil confinement of S 376a dangerous per- Kansas can classify Hendricks as ‘‘mentally son where the danger flowed from an ‘‘ ‘utter ill’’ and ‘‘dangerous’’ as this Court used those lack of power to control TTT sexual impul- terms in Foucha. ses’ ’’) (quoting State ex rel. Pearson v. Pro- bate Court of Ramsey Cty., 205 Minn. 545, The Kansas Supreme Court’s contrary 555, 287 N.W. 297, 302 (1939)); 1788 N.Y. conclusion rested primarily upon that court’s Laws, ch. 31 (permitting confinement of view that Hendricks would not qualify for those who are ‘‘furiously mad’’); In re Oakes, civil commitment under Kansas’ own state 8 Law Rep. 122, 125 (Mass.1845) (Shaw, C. civil commitment statute. The issue before J.); A. Deutsch, The Mentally Ill in America us, however, is one of constitutional interpre- 419–420 (1949) (tracing history of commit- tation. The Constitution does not require ment of furiously mad people in 18th and Kansas to write all of its civil commitment 19th centuries); Dershowitz, The Origins of rules in a single statute or forbid it to write Preventative Confinement in Anglo–Ameri- two separate statutes each covering some- can Law—Part II: The American Experi- what different classes of committable individ- ence, 43 U. Cin. L.Rev. 781 (1974). Indeed, uals. Moreover, Hendricks apparently falls the notion of an ‘‘irresistible impulse’’ often outside the scope of the Kansas general civil has helped to shape criminal law’s insanity commitment statute because that statute per- defense and to inform the related recommen- mits confinement only of those who ‘‘lac[k] dations of legal experts as they seek to capacity to make an informed decision con- translate the insights of mental health pro- cerning treatment.’’ Kan. Stat. Ann. § 59– fessionals into workable legal rules. See also 2902(h) (1994). The statute does not tell us American Law Institute, Model Penal Code why it imposes this requirement. Capacity § 4.01 (insanity defense, in part, rests on to make an informed decision about treat- inability ‘‘to conform TTT conduct to the re- ment is not always or obviously incompatible quirements of law’’); A. Goldstein, The In- with severe mental illness. Neither Hen- sanity Defense 67–79 (1967) (describing ‘‘ir- dricks nor his amici point to a uniform body resistible impulse’’ test). of professional opinion that says as much, Third, Hendricks’ mental abnormality also and we have not found any. See, e.g., Ameri- makes him dangerous. Hendricks ‘‘has been can Psychiatric Assn., Guidelines for Legisla- convicted of TTT a sexually violent offense,’’ tion on the Psychiatric Hospitalization of and a jury found that he ‘‘suffers from a Adults, 140 Am. J. Psychiatry 672, 673 mental abnormality TTT which makes’’ him (1983); Stromberg & Stone, A Model State ‘‘likely to engage’’ in similar ‘‘acts of sexual Law on Civil Commitment of the Mentally violence’’ in the future. Kan. Stat. Ann. Ill, 20 Harv. J. Legis. 275, 301–302 (1983); §§ 59–29a02, 59–29a03 (1994). The evidence DeLand & Borenstein, Medicine Court, II, at trial favored the State. Dr. Befort, for Rivers in Practice, 147 Am. J. Psychiatry 38 example, explained why Hendricks was likely (1990). Consequently, the boundaries of the to commit further acts of sexual violence if Federal Constitution and those of Kansas’ released. See, e.g., App. 248–254. And Hen- general civil commitment statute are not con- dricks’ own testimony about what happens gruent. 2090 117 SUPREME COURT REPORTER 521 U.S. 377

B turn to the Ex Post Facto Clause discussion. The Kansas Supreme Court also held that As Justice KENNEDY points out, ante, at the Due Process Clause requires a State to 2087, some of the matters there discussed provide treatment to those whom it civilly may later prove relevant to substantive due confines (as ‘‘mentally ill’’ and ‘‘dangerous’’). process analysis. It found that Kansas did not provide Hen- S 379II dricks with significant S 378treatment. And it concluded that Hendricks’ confinement vio- Kansas’ 1994 Act violates the Federal Con- lated the Due Process Clause for this reason stitution’s prohibition of ‘‘any TTT ex post as well. facto Law’’ if it ‘‘inflicts’’ upon Hendricks ‘‘a greater punishment’’ than did the law ‘‘an- This case does not require us to consider nexed to’’ his ‘‘crime[s]’’ when he ‘‘commit- whether the Due Process Clause always re- ted’’ those crimes in 1984. Calder v. Bull, 3 quires treatment—whether, for example, it Dall. 386, 390, 1 L.Ed. 648 (1798) (opinion of would forbid civil confinement of an untreat- Chase, J.); U.S. Const., Art. I, § 10. The able mentally ill, dangerous person. To the majority agrees that the Clause ‘‘ ‘forbids the contrary, Kansas argues that pedophilia is an application of any new punitive measure to a ‘‘abnormality’’ or ‘‘illness’’ that can be treat- crime already consummated.’ ’’ California ed. See Tr. of Oral Arg. 12 (Kansas Attor- Dept. of Corrections v. Morales, 514 U.S. 499, ney General, in response to the question 505, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588 ‘‘you’re claiming that there is some treatabili- (1995) (citation omitted; emphasis added). TTT ty ?’’ answering ‘‘[a]bsolutely’’); Brief for Ante, at 2086. But it finds the Act is not Petitioner 42–47. Two groups of mental ‘‘punitive.’’ With respect to that basic ques- health professionals agree. Brief for Associ- tion, I disagree with the majority. ation for the Treatment of Sexual Abusers as Certain resemblances between the Act’s Amicus Curiae 11–12 (stating that ‘‘sex of- ‘‘civil commitment’’ and traditional criminal fenders can be treated’’ and that ‘‘increasing punishments are obvious. Like criminal im- evidence’’ shows that ‘‘state-of-the-art treat- prisonment, the Act’s civil commitment ment programs TTT significantly reduce re- amounts to ‘‘secure’’ confinement, Kan. Stat. cidivism’’); Brief for Menninger Foundation Ann. § 59–29a07(a) (1994), and ‘‘incarceration et al. as Amici Curiae 28. Indeed, no one against one’s will,’’ In re Gault, 387 U.S. 1, argues the contrary. Hence the legal ques- 50, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527 tion before us is whether the Clause forbids (1967). See Testimony of Terry Davis, SRS Hendricks’ confinement unless Kansas pro- Director of Quality Assurance, App. 52–54, vides him with treatment that it concedes is 78–81 (confinement takes place in the psychi- available. atric wing of a prison hospital where those Nor does anyone argue that Kansas some- whom the Act confines and ordinary prison- how could have violated the Due Process ers are treated alike). Cf. Browning–Ferris Clause’s treatment concerns had it provided Industries of Vt., Inc. v. Kelco Disposal, Inc., Hendricks with the treatment that is poten- 492 U.S. 257, 298, 109 S.Ct. 2909, 2932, 106 tially available (and I do not see how any L.Ed.2d 219 (1989) (O’CONNOR, J., concur- such argument could succeed). Rather, the ring in part and dissenting in part). In basic substantive due process treatment addition, a basic objective of the Act is inca- question is whether that Clause requires pacitation, which, as Blackstone said in de- Kansas to provide treatment that it concedes scribing an objective of criminal law, is to is potentially available to a person whom it ‘‘depriv[e] the party injuring of the power to concedes is treatable. This same question is do future mischief.’’ 4 W. Blackstone, Com- at the heart of my discussion of whether mentaries *11–*12 (incapacitation is one im- Hendricks’ confinement violates the Consti- portant purpose of criminal punishment); see tution’s Ex Post Facto Clause. See infra, at also Foucha, 504 U.S., at 99, 112 S.Ct., at 2092–2098. For that reason, I shall not con- 1795 (KENNEDY, J., dissenting) (‘‘Incapaci- sider the substantive due process treatment tation for the protection of society is not an question separately, but instead shall simply unusual ground for incarceration’’); United 521 U.S. 381 KANSAS v. HENDRICKS 2091 Cite as 117 S.Ct. 2072 (1997) States v. Brown, 381 U.S. 437, 458, 85 S.Ct. criminal law-type procedures determinative. 1707, 1720, 14 L.Ed.2d 484 (1965) (‘‘Punish- Those procedures can serve an important ment serves several purposes: retributive, purpose that in this context one might con- rehabilitative, deterrent—and preventative. sider noncriminal, namely, helping to prevent

One of the reasons society imprisons those judgmental S 381mistakes that would wrongly convicted S 380of crimes is to keep them from deprive a person of important liberty. Id., at inflicting future harm, but that does not 371–372, 106 S.Ct., at 2993–2994. make imprisonment any the less punish- ment’’); 1 W. LaFave & A. Scott, Substan- If these obvious similarities cannot by tive Criminal Law § 1.5, p. 32 (1986); 18 themselves prove that Kansas’ ‘‘civil commit- U.S.C. § 3553(a); United States Sentencing ment’’ statute is criminal, neither can the Guidelines, Guidelines Manual, ch. 1, pt. A word ‘‘civil’’ written into the statute, § 59– (Nov.1995). 29a01, by itself prove the contrary. This Court has said that only the ‘‘clearest proof’’ Moreover, the Act, like criminal punish- could establish that a law the legislature ment, imposes its confinement (or sanction) called ‘‘civil’’ was, in reality, a ‘‘punitive’’ only upon an individual who has previously measure. United States v. Ward, 448 U.S. committed a criminal offense. Kan. Stat. 242, 248–249, 100 S.Ct. 2636, 2641, 65 Ann. §§ 59–29a02(a), 59–29a03(a) (1994). Cf. L.Ed.2d 742 (1980). But the Court has also Department of Revenue of Mont. v. Kurth reiterated that a ‘‘civil label is not always Ranch, 511 U.S. 767, 781, 114 S.Ct. 1937, dispositive,’’ Allen v. Illinois, supra, at 369, 1947, 128 L.Ed.2d 767 (1994) (fact that a tax 106 S.Ct., at 2992; it has said that in close on marijuana was ‘‘conditioned on the com- cases the label is ‘‘ ‘not of paramount impor- mission of a crime’’ is ‘‘ ‘significant of [its] tance,’ ’’ Kurth Ranch, supra, at 777, 114 penal and prohibitory intent’ ’’ (citation omit- S.Ct., at 1945 (citation omitted); and it has ted)); Lipke v. Lederer, 259 U.S. 557, 561– looked behind a ‘‘civil’’ label fairly often, 562, 42 S.Ct. 549, 550–551, 66 L.Ed. 1061 e.g., United States v. Halper, 490 U.S. 435, (1922). And the Act imposes that confine- 447, 109 S.Ct. 1892, 1901, 104 L.Ed.2d 487 ment through the use of persons (county (1989). prosecutors), procedural guarantees (trial by jury, assistance of counsel, psychiatric evalu- In this circumstance, with important fea- ations), and standards (‘‘beyond a reasonable tures of the Act pointing in opposite di- doubt’’) traditionally associated with the rections, I would place particular importance criminal law. Kan. Stat. Ann. §§ 59–29a06, upon those features that would likely distin- 59–29a07 (1994). guish between a basically punitive and a basi- These obvious resemblances by them- cally nonpunitive purpose. United States v. selves, however, are not legally sufficient to Ursery, 518 U.S. 267, 278, 116 S.Ct. 2135, transform what the Act calls ‘‘civil commit- 2142, 135 L.Ed.2d 549 (1996) (asking whether ment’’ into a criminal punishment. Civil a statutory scheme was so punitive ‘‘ ‘either commitment of dangerous, mentally ill indi- in purpose or effect’ ’’ to negate the legisla- viduals by its very nature involves confine- ture’s ‘‘ ‘intention to establish a civil remedial ment and incapacitation. Yet ‘‘civil commit- mechanism’ ’’ (citations omitted)). And I ment,’’ from a constitutional perspective, note that the Court, in an earlier civil com- nonetheless remains civil. Allen v. Illinois, mitment case, Allen v. Illinois, 478 U.S., at 478 U.S., at 369–370, 106 S.Ct., at 2992–2993. 369, 106 S.Ct., at 2992, looked primarily to Nor does the fact that criminal behavior the law’s concern for treatment as an impor- triggers the Act make the critical difference. tant distinguishing feature. I do not believe The Act’s insistence upon a prior crime, by that Allen means that a particular law’s lack screening out those whose past behavior does of concern for treatment, by itself, is enough not concretely demonstrate the existence of a to make an incapacitative law punitive. But, mental problem or potential future danger, for reasons I will point out, when a State may serve an important noncriminal eviden- believes that treatment does exist, and then tiary purpose. Neither is the presence of couples that admission with a legislatively 2092 117 SUPREME COURT REPORTER 521 U.S. 381 required delay of such treatment until a per- tory scheme to confine, not simply in order to son is at the end of his jail term (so that protect, but also in order to cure. That is to further incapacitation is therefore necessary), say, one would expect a nonpunitively moti- such a legislative scheme begins to look puni- vated legislature that confines because of a tive. dangerous mental abnormality to seek to help the individual himself overcome that In Allen, the Court considered whether, abnormality (at least insofar as professional for Fifth Amendment purposes, proceedings treatment for the abnormality exists and is under an Illinois statute were S 382civil or S 383potentially helpful, as Kansas, supported ‘‘criminal.’’ The Illinois statute, rather like by some groups of mental health profession- the Kansas statute here, authorized the con- als, argues is the case here, see supra, at finement of persons who were sexually dan- 2090). Conversely, a statutory scheme that gerous, who had committed at least one prior provides confinement that does not reason- sexual assault, and who suffered from a ably fit a practically available, medically ori- ‘‘mental disorder.’’ Id., at 366, n. 1, 106 ented treatment objective, more likely re- S.Ct., at 2988, n. 1. The Allen Court, looking flects a primarily punitive legislative purpose. behind the statute’s ‘‘civil commitment’’ label, Several important treatment-related fac- found the statute civil—in important part tors—factors of a kind that led the five- because the State had ‘‘provided for the Member Allen majority to conclude that the treatment of those it commits.’’ Id., at 370, Illinois Legislature’s purpose was primarily 106 S.Ct., at 2992 (also referring to facts that civil, not punitive—in this action suggest pre- the State had ‘‘disavowed any interest in cisely the opposite. First, the State Su- punishment’’ and that it had ‘‘established a preme Court here, unlike the state court in system under which committed persons may Allen, has held that treatment is not a signif- be released after the briefest time in confine- icant objective of the Act. The Kansas court ment’’). wrote that the Act’s purpose is ‘‘segregation In reaching this conclusion, the Court not- of sexually violent offenders,’’ with ‘‘treat- ed that the State Supreme Court had found ment’’ a matter that was ‘‘incidental at best.’’ the proceedings ‘‘ ‘essentially civil’ ’’ because 259 Kan., at 258, 912 P.2d, at 136. By way of contrast, in the Illinois court had writ- the statute’s aim was to provide ‘‘ ‘treatment, Allen ten that ‘‘ ‘treatment, not punishment,’ ’’ was not punishment.’ ’’ Id., at 367, 106 S.Ct., at ‘‘the aim of the statute.’’ Allen, supra, at 2991 (quoting People v. Allen, 107 Ill.2d 91, 367, 106 S.Ct., at 2991 (quoting People v. 99–101, 89 Ill.Dec. 847, 851–852, 481 N.E.2d Allen, supra, at 99–101, 89 Ill.Dec. at 851– 690, 694–695 (1985)). It observed that the 852, 481 N.E.2d, at 694–695). State had ‘‘a statutory obligation to provide ‘care and treatment TTT designed to effect We have generally given considerable recovery’ ’’ in a ‘‘facility set aside to provide weight to the findings of state and lower psychiatric care.’’ 478 U.S., at 369, 106 S.Ct., federal courts regarding the intent or pur- at 2992 (quoting Ill.Rev.Stat., ch. 38, ¶ 105–8 pose underlying state officials’ actions, see (1985)). And it referred to the State’s pur- U.S. Term Limits, Inc. v. Thornton, 514 U.S. pose as one of ‘‘treating rather than punish- 779, 829, 115 S.Ct. 1842, 1867, 131 L.Ed.2d TTT ing sexually dangerous persons.’’ 478 U.S., 881 (1995) (ordinarily ‘‘[w]e must accept at 373, 106 S.Ct., at 2994; see also ibid. the state court’s view of the purpose of its own law’’); Romer v. Evans, 517 U.S. 620, (‘‘Had petitioner shown, for example, that the 626, 116 S.Ct. 1620, 1624, 134 L.Ed.2d 855 confinement TTT imposes TTT a regimen (1996); Hernandez v. New York, 500 U.S. which is essentially identical to that imposed 352, 366–370, 111 S.Ct. 1859, 1869–1872, 114 upon felons with no need for psychiatric care, L.Ed.2d 395 (1991) (plurality opinion); id., at this might well be a different case’’). 372, 111 S.Ct., at 1873 (O’CONNOR, J., con- The Allen Court’s focus upon treatment, as curring); Edwards v. Aguillard, 482 U.S. a kind of touchstone helping to distinguish 578, 594, n. 15, 107 S.Ct. 2573, 2583, n. 15, 96 civil from punitive purposes, is not surpris- L.Ed.2d 510 (1987); but see Department of ing, for one would expect a nonpunitive statu- Revenue of Mont. v. Kurth Ranch, 511 U.S., 521 U.S. 385 KANSAS v. HENDRICKS 2093 Cite as 117 S.Ct. 2072 (1997) at 776, 780, n. 18, 114 S.Ct., at 1944, 1946, n. statute’’ is ‘‘still not available’’); id., at 420– 18; Stone v. Graham, 449 U.S. 39, 40–43, 101 421 (the ‘‘needed treatment’’ ‘‘hasn’t been S.Ct. 192, 193–195, 66 L.Ed.2d 199 (1980) delivered yet’’ and ‘‘Hendricks has wasted (per curiam); Consolidated Edison Co. of ten months’’ in ‘‘terms of treatment effects’’); N.Y. v. Public Serv. Comm’n of N. Y., 447 id., at 391–392 (Dr. Befort admitting that he is not qualified to be SVP program director). U.S. 530, 533, 535–537, 100 S.Ct. 2326, 2330– 2331, 2332–2333, 65 L.Ed.2d 319 (1980), al- It is therefore not surprising that some of though the level of deference given to such the Act’s official supporters had seen in it an opportunity permanently to confine danger- findings varies with the circumstances, Craw- ous sex offenders, e.g., id., at 468 (statement ford v. Board of Ed. of Los Angeles, 458 U.S. of Attorney General Robert Stephan); id., at 527, 544, n. 30, 102 S.Ct. 3211, 3221, n. 30, 73 475–476, 478 (statement of Special Assistant L.Ed.2d 948 (1982), and is not always as to the Attorney General S 385Carla Stovall). conclusive as a state court’s construction of Others thought that effective treatment did one of its statSutes,384 see, e.g., R.A.V. v. St. not exist, id., at 503 (statement of Jim Blau- Paul, 505 U.S. 377, 381, 112 S.Ct. 2538, 2541– fuss) (‘‘Because there is no effective treat- 2542, 120 L.Ed.2d 305 (1992). For example, ment for sex offenders, this Bill may mean a Allen ’s dissenters, as well as its majority, life sentence for a felon that is considered a considered the state court’s characterization risk to women and children. SO BE IT!’’)— of the state law’s purpose an important factor a view, by the way, that the State of Kansas, in determining the constitutionality of that supported by groups of informed mental health professionals, here strongly denies. statute. Allen, 478 U.S., at 380, 106 S.Ct., at See supra, at 2090. 2997–2998 (STEVENS, J., dissenting) (de- scribing the state court as ‘‘the final authori- The Kansas court acknowledged the exis- tence of ‘‘provisions of the Act for treatment’’ ty on the TTT purpose’’ of the statute). (although it called them ‘‘somewhat disingen- The record provides support for the Kan- uous’’). 259 Kan., at 258, 912 P.2d, at 136. sas court’s conclusion. The court found that, Cf. Kan. Stat. Ann. § 59–29a01 (1994) (legis- as of the time of Hendricks’ commitment, the lative findings that ‘‘prognosis for rehabili- ta[tion] TTT in a prison setting is poor, TTT State had not funded treatment, it had not treatment needs TTT long term’’ and ‘‘com- entered into treatment contracts, and it had mitment procedure for TTT long term care little, if any, qualified treatment staff. See and treatment TTT necessary’’); § 59–29a09 259 Kan., at 249, 258, 912 P.2d, at 131, 136; (‘‘commitment TTT shall conform to constitu- Testimony of Dr. Charles Befort, App. 255 tional requirements for care and treatment’’). (acknowledging that he has no specialized Nor did the court deny that Kansas could training); Testimony of John House, SRS later increase the amount of treatment it Attorney, id., at 367 (no contract has been provided. But the Kansas Supreme Court signed by bidders); Testimony of John could, and did, use the Act’s language, histo- House, SRS Attorney, id., at 369 (no one ry, and initial implementation to help it char- hired to operate sexually violent predator acterize the Act’s primary purposes. (SVP) program or to serve as clinical di- Second, the Kansas statute, insofar as it rector, psychiatrist, or psychologist). In- applies to previously convicted offenders deed, were we to follow the majority’s invita- such as Hendricks, commits, confines, and tion to look beyond the record in this case, an treats those offenders after they have served virtually their entire criminal sentence. That invitation with which we disagree, see infra, time-related circumstance seems deliberate. at 2085, it would reveal that Hendricks, ac- The Act explicitly defers diagnosis, evalua- cording to the commitment program’s own tion, and commitment proceedings until a few director, was receiving ‘‘essentially no treat- weeks prior to the ‘‘anticipated release’’ of a ment.’’ Dr. Charles Befort in State Habeas previously convicted offender from prison. Corpus Proceeding, App. 393; 259 Kan., at Kan. Stat. Ann. § 59–29a03(a)(1) (1994). But 249, 258, 912 P.2d, at 131, 136. See also App. why, one might ask, does the Act not commit 421 (‘‘[T]he treatment that is prescribed by and require treatment of sex offenders soon- 2094 117 SUPREME COURT REPORTER 521 U.S. 385 er, say, soon after they begin to serve their ings very similar to those in which prisoners sentences? receive treatment); Testimony of John An Act that simply seeks confinement, of House, SRS S 387Attorney, id., at 375–376. course, would not need to begin civil commit- See also Task Force on Community Protec- ment proceedings sooner. Such an Act tion, Final Report to Booth Gardner, Gover- would have to begin proceedings only when nor State of Washington II–2 (1989) (findings an S 386offender’s prison term ends, threaten- of task force that developed the Washington ing his release from the confinement that State Act, which served as a model for Kan- imprisonment assures. But it is difficult to sas’ Act, stating that ‘‘[s]ex offenders can be see why rational legislators who seek treat- treated during incarceration’’). The evidence ment would write the Act in this way— adduced at the state habeas proceeding, were providing treatment years after the criminal we to assume it properly before the Court, act that indicated its necessity. See, e.g., see infra, at 20–21, supports this conclusion Wettstein, A Psychiatric Perspective on as well. See Testimony of Dr. Befort at Washington’s Sexually Violent Predators State Habeas Proceeding, App. 399, 406–408 Statute, 15 U. Puget Sound L.Rev. 597, 617 (describing treatment as ward milieu and (1992) (stating that treatment delay leads to group therapy); id., at 416–417 (stating that ‘‘loss of memory’’ and makes it ‘‘more diffi- Kansas offers similar treatment, on a volun- cult for the offender’’ to ‘‘accept responsibili- tary basis, to prisoners). Hence, assuming, ty,’’ and that time in prison leads to attitude hardening that ‘‘engender[s] a distorted view arguendo, that it would be otherwise permis- of the precipitating offense’’). And it is par- sible, Kansas need not postpone treatment in ticularly difficult to see why legislators who order to make certain that sex offenders specifically wrote into the statute a finding serve their full terms of imprisonment, i.e., to that ‘‘prognosis for rehabilitating TTT in a make certain that they receive the entire prison setting is poor’’ would leave an offend- punishment that Kansas criminal law pro- er in that setting for months or years before vides. To the contrary, the statement in the beginning treatment. This is to say, the Act itself, that the Act aims to respond to timing provisions of the statute confirm the special ‘‘long term’’ ‘‘treatment needs,’’ sug- Kansas Supreme Court’s view that treatment gests that treatment should begin during was not a particularly important legislative imprisonment. It also suggests that, were objective. those long-term treatment needs (rather I recognize one possible counterargument. than further punishment) Kansas’ primary A State, wanting both to punish Hendricks aim, the State would require that treatment (say, for deterrence purposes) and also to begin soon after conviction, not 10 or more treat him, might argue that it should be years later. See also Vt. Stat. Ann., Tit. 18, permitted to postpone treatment until after § 2815 (1959) (providing for treatment of punishment in order to make certain that the sexual psychopaths first, and punishment af- punishment in fact occurs. But any such terwards). reasoning is out of place here. Much of the treatment that Kansas offered here (called Third, the statute, at least as of the time ‘‘ward milieu’’ and ‘‘group therapy’’) can be Kansas applied it to Hendricks, did not re- given at the same time as, and in the same quire the committing authority to consider place where, Hendricks serves his punish- the possibility of using less restrictive alter- ment. See, e.g., Testimony of Leroy Hen- natives, such as postrelease supervision, half- dricks, App. 142–143, 150, 154, 179–181 (stat- way houses, or other methods that amici ing that Washington and Kansas had both supporting Kansas here have mentioned. provided group therapy to Hendricks, and Brief for Menninger Foundation et al. as that he had both taken and refused such Amici Curiae 28; Brief for Association for treatment at various points); Testimony of the Treatment of Sexual Abusers as Amicus Terry Davis, SRS Director of Quality Assur- Curiae 11–12. The laws of many other ance, id., at 78–81 (pointing out that treat- States require such consideration. See Ap- ment under the Act takes place in surround- pendix, infra. 521 U.S. 390 KANSAS v. HENDRICKS 2095 Cite as 117 S.Ct. 2072 (1997)

S 388This Court has said that a failure to (Supp.1996–1997); Cal. Welf. & Inst.Code consider, or to use, ‘‘alternative and less Ann. §§ 6607, 6608 (West Supp.1997); Minn. harsh methods’’ to achieve a nonpunitive ob- Stat. § 253B.09 (1996); N.J. Stat. Ann. jective can help to show that legislature’s § 30:4–27.11d (West 1997); Wash. Rev.Code ‘‘purpose TTT was to punish.’’ Bell v. Wolf- Ann. § 71.09.090 (Supp.1996–1997); Wis. ish, 441 U.S. 520, 539, n. 20, 99 S.Ct. 1861, Stat. § 980.06(2)(b) (Supp.1993–1994). Only 1874, n. 20, 60 L.Ed.2d 447 (1979). And one one State other than Kansas, namely Iowa, can draw a similar conclusion here. Legisla- both delays civil commitment (and conse- tion that seeks to help the individual offender quent treatment) and does not explicitly con- as well as to protect the public would avoid sider less restrictive alternatives. But the significantly greater restriction of an individ- law of that State applies prospectively only, ual’s liberty than public safety requires. See thereby avoiding ex post facto problems. Keilitz, Conn, & Gianpetro, Least Restrictive See Iowa Code Ann. § 709C.12 (Supp.1997) Treatment of Involuntary Patients: Translat- (Iowa SVP Act only ‘‘applies to persons con- ing Concepts into Practice, 29 St. Louis victed of a sexually violent offense on or after U.L.J. 691, 693 (1985) (describing ‘‘least re- July 1, 1997’’); see also Appendix, infra. strictive alternativ[e]’’ provisions in the ordi- Thus the practical experience of other States, nary civil commitment laws of almost all as revealed by their statutes, confirms what States); Lyon, Levine, & Zusman, Patients’ the Kansas Supreme Court’s finding, the tim- Bill of Rights: A Survey of State Statutes, 6 ing of the civil commitment proceeding, and Mental Disability L. Rep. 178, 181–183 (1982) the failure to consider less restrictive alter- (same). Legislation that seeks almost exclu- natives, themselves suggest, namely, that for sively to incapacitate the individual through Ex Post Facto Clause purposes, the purpose confinement, however, would not necessarily of the Kansas Act (as applied to previously concern itself with potentially less restrictive convicted offenders) has a punitive, rather forms of incapacitation. I would reempha- than a purely civil, purpose. size that this is not a case in which the State Kansas points to several cases as support claims there is no treatment potentially avail- for a contrary conclusion. It points to Al- able. Rather, Kansas, and supporting amici, len—which is, as we have seen, a case in argue that pedophilia is treatable. See su- which the Court concluded that Illinois’ ‘‘civil pra, at 2090. commitment’’ proceedings were not criminal. Fourth, the laws of other States confirm, I have explained in detail, however, how the through comparison, that Kansas’ ‘‘civil com- statute here differs from that in Allen, and mitment’’ objectives do not require the statu- why Allen ’s reasoning leads to a different tory features that indicate a punitive pur- conclusion in this litigation. See supra, at pose. I have found 17 States with laws that 2091–2095. seek to protect the public from mentally Kansas also points to Addington v. Texas, abnormal, sexually dangerous individuals where the Court held that the Constitution through civil commitment or other mandato- does not require application of criminal law’s ry treatment programs. Ten of those stat- ‘‘beyond a reasonable doubt’’ standard in a utes, unlike the Kansas statute, begin treat- civil commitment proceeding. 441 U.S., at ment of an offender soon after he has been 428, 99 S.Ct., at 1810. If some criminal law apprehended and charged with a serious sex guarantees such as ‘‘reasonable doubt’’ did offense. Only seven, like Kansas, delay ‘‘civ- not apply in Addington, should other guaran- il’’ commitment (and treatment) until the of- tees, such as the prohibition against ex post fender has served his criminal sentence (and facto laws, apply here? The answer to this this figure includes the Acts of Minnesota question, of course, lies in the particular stat- and New Jersey, both of which generally do ute at issue in Addington—a Texas statute not delay treatment). Of these seven, how- that, this Court obSserved,390 did ‘‘not exer- ever, six (unlike Kansas) require consider- cis[e]’’ state power ‘‘in a punitive sense.’’ ation of less reSstrictive389 alternatives. See Ibid. That statute did not add civil commit- Ariz.Rev.Stat. Ann. §§ 13–4601, 4606 B ment’s confinement to imprisonment; rather 2096 117 SUPREME COURT REPORTER 521 U.S. 390 civil commitment was, at most, a substitute ed until after they have been punishedTTTT for criminal punishment. See Tex.Rev.Civ. Setting aside the question of whether a Stat. Ann. § 5547–41 (Vernon 1958) (petition prison term exacerbates or minimizes the must state ‘‘proposed patient is not charged mental condition of a sex offender, it plain- with a crime or [is] charged [but] transferred ly delays the treatment that must constitu- TTT for civil commitment proceedings’’). And tionally accompany commitment pursuant this Court, relying on the Texas Supreme to the Statute. The failure of the Statute Court’s interpretation, wrote that the ‘‘State to provide for examination or treatment of Texas confines only for the purpose of prior to the completion of the punishment providing care designed to treat the individu- phase strongly suggests that treatment is al.’’ Addington, supra, at 428, n. 4, 99 S.Ct., of secondary, rather than primary, con- at 1810, n. 4 (citing State v. Turner, 556 cern.’ ’’ 259 Kan., at 258, 912 P.2d, at 136 S.W.2d 563, 566 (1977)). Cf. Specht v. Pat- (quoting Young v. Weston, 898 F.Supp. terson, 386 U.S. 605, 608–609, 87 S.Ct. 1209, 744, 753 (W.D.Wash.1995)). 1211–1212, 18 L.Ed.2d 326 (1967) (separate This quotation, and the rest of the opinion, postconviction sexual psychopath commit- make clear that the court is finding it objec- ment/sentencing proceeding held after con- tionable that the statute, among other things, viction for serious sex crime, imposes a has not provided adequate treatment to one ‘‘criminal punishment even though TTT de- who, all parties here concede, can be treated. signed not so much as retribution as TTT to keep individuals from inflicting future The majority suggests in the alternative harm’’). Nothing I say here would change that recent evidence shows that Kansas is the reach or holding of Addington in any now providing treatment. Ante, at 2084– way. That is, a State is free to commit those 2085. That evidence comes from two who are dangerous and mentally ill in order sources: First, a statement by the Kansas to treat them. Nor does my decision pre- Attorney General at oral argument that clude a State from deciding that a certain those committed under the Act are now re- subset of people are mentally ill, dangerous, ceiving treatment, ante, at 2085; and second, and untreatable, and that confinement of this in a footnote, a Kansas trial judge’s state- subset is therefore necessary (again, assum- ment, in a state habeas proceeding nearly ing that all the procedural safeguards of one year after Hendricks was committed, Addington are in place). But when a State that Kansas is providing treatment. Ante, at decides offenders can be treated and confines 2085, n. 5. I do not see how either of these an offender to provide that treatment, but statements can be used to justify the validity then refuses to provide it, the refusal to treat of the Act’s application to Hendricks at the while a person is fully incapacitated begins to time he filed suit. look punitive. We are reviewing the Kansas Supreme The majority suggests that this is the very Court’s determination of Hendricks’ case. case I say it is not, namely, a case of a Neither the majority nor the lengthy dissent mentally ill person who is untreatable. Ante, in that court referred to the two facts that at 2084. And it quotes a long excerpt from the majority now seizes upon, and for good the Kansas Supreme Court’s opinion in sup- reason. That court denied a motion to take port. That court, however, did not find that judicial notice of the state S 392habeas proceed- Hendricks was untreatable; it found that he ing, see Order of Kansas Supreme Court, No. was untreated—quite a different matter. 94–73039, Mar. 1, 1996. The proceeding is Had the Kansas Supreme Court thought that thus not part of the record, and cannot prop- Hendricks, or othSers391 like him, are untreat- erly be considered by this Court. And the able, it could not have written the words that Kansas Supreme Court obviously had no follow that excerpt, adopting by reference chance to consider Kansas’ new claim made the words of another court opinion: at oral argument before this Court. There is ‘‘ ‘The statute forecloses the possibility simply no evidence in the record before this that offenders will be evaluated and treat- Court that comes even close to resembling 521 U.S. 394 KANSAS v. HENDRICKS 2097 Cite as 117 S.Ct. 2072 (1997) the assertion Kansas made at oral argument. We have found no other evidence in the It is the record, not the parties’ view of it, record to support the conclusion that Kansas that must control our decision. See Russell was in fact providing the treatment that all v. Southard, 12 How. 139, 158–159, 13 L.Ed. parties agree that it could provide. Thus, 927 (1851); Adickes v. S.H. Kress & Co., 398 even had the Kansas Supreme Court consid- U.S. 144, 157–158, n. 16, 90 S.Ct. 1598, 1608, ered the majority’s new evidence—which it n. 16, 26 L.Ed.2d 142 (1970); Hopt v. Utah, did not—it is not likely to have changed its 114 U.S. 488, 491–492, 5 S.Ct. 972, 973, 29 characterization of the Act’s treatment provi- L.Ed. 183 (1885); Witters v. Washington sions as ‘‘somewhat disingenuous.’’ 259 Kan., at 258, 912 P.2d, at 136. Dept. of Servs. for Blind, 474 U.S. 481, 486, n. 3, 106 S.Ct. 748, 751, n. 3, 88 L.Ed.2d 846 Regardless, the Kansas Supreme Court (1986); New Haven Inclusion Cases, 399 did so characterize the Act’s treatment provi- U.S. 392, 450, n. 66, 90 S.Ct. 2054, 2088, n. 66, sions and did find that treatment was ‘‘at 26 L.Ed.2d 691 (1970); R. Stern, E. Gress- best’’ an ‘‘incidental’’ objective. Thus, the man, S. Shapiro, & K. Geller, Supreme Court circumstances here are different from Allen, where the Illinois Supreme Court explicitly Practice 555–556, 594 (7th ed. 1993); Fed. found that the statute’s aim was to provide Rule Evid. 201(b). treatment, not punishment. See supra, at The prohibition on facts found outside the 2092–2093. There is no evidence in the rec- record is designed to ensure the reliability of ord that contradicts the finding of the Kan- the evidence before the Court. For purposes sas court. Thus, Allen ’s approach—its reli- of my argument in this dissent, however, the ance on the state court—if followed here material that the majority wishes to consider, would mean the Act as applied to Leroy Hendricks (as opposed to others who may when read in its entirety, shows that Kansas have received treatment or who were sen- was not providing treatment to Hendricks. tenced after the effective date of the Act) is At best, the testimony at the state hearing punitive. contained general and vague references that treatment was about to be provided, but it Finally, Kansas points to United States v. contains no statement that Hendricks him- Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), a case in which this self was receiving treatment. And it pro- Court held preventive detention of a danger- vides the majority with no support at all in ous accused person pending trial constitu- respect to that key fact. Indeed, it demon- tionally permissible. Salerno, however, in- strates the contrary conclusion. For exam- volved the brief detention of that person, ple, the program’s director, Dr. Befort, testi- after a finding of ‘‘probable cause’’ that he fied that he would have to tell the court at had committed a crime that would justify Hendricks’ next annual review, in October further imprisonment, and only pending a 1995, that Hendricks ‘‘has had no opportunity speedy judicial determination of guilt or in- for meaningful treatment.’’ App. 400. He nocence. This Court, in Foucha, emphasized also stated that SVP’s were receiving ‘‘essen- the fact that the confinement at issue in tially no treatment’’ and that the program Salerno was ‘‘strictly limited in duration.’’ does not ‘‘have adequate staffing.’’ Id., at 504 U.S., at 82, 112 S.Ct., at 1787. It de- 393, 394. And Dr. Befort’s last words made scribed S 394that ‘‘pretrial detention of arres- clear that Hendricks has ‘‘wasted ten months tees’’ as ‘‘one of those carefully limited excep- TTT in terms of treatment S 393effects’’ and tions permitted by the Due Process Clause.’’ that, as far as treatment goes, ‘‘[t]oday, it’s Id., at 83, 112 S.Ct., at 1787. And it held still not available.’’ Id., at 420–421. Nor that Salerno did not authorize the indefinite does the assertion made by the Kansas At- detention, on grounds of dangerousness, of torney General at oral argument help the ‘‘insanity acquittees who are not mentally ill majority. She never stated that Hendricks, but who do not prove they would not be as opposed to other SVP’s, was receiving this dangerous to others.’’ 504 U.S., at 83, 112 treatment. And we can find no support for S.Ct., at 1787. Whatever Salerno ’s ‘‘due her statement in the record. process’’ implications may be, it does not 2098 117 SUPREME COURT REPORTER 521 U.S. 394 focus upon, nor control, the question at issue the Kansas Act, as it now stands, and in light here, the question of ‘‘punishment’’ for pur- of its current implementation, is punitive to- poses of the Ex Post Facto Clause. ward people other than he. And I do not One other case warrants mention. In attempt to do so here. Kennedy v. Mendoza–Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), this III Court listed seven factors that helped it de- To find that the confinement the Act im- termine whether a particular statute was pri- poses upon Hendricks is ‘‘punishment’’ is to marily punitive for purposes of applying the find a violation of the Ex Post Facto Clause. Fifth and Sixth Amendments. Those factors Kansas does not deny that the 1994 Act include whether a sanction involves an affir- changed the legal consequences that attached mative restraint, how history has regarded it, to Hendricks’ earlier crimes, and in a way whether it applies to behavior already a that significantly ‘‘disadvantage[d] the of- crime, the need for a finding of scienter, its fender,’’ Weaver v. Graham, 450 U.S. 24, 29, relationship to a traditional aim of punish- 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). See ment, the presence of a nonpunitive alterna- Brief for Respondent State of Kansas 37–39. tive purpose, and whether it is excessive in relation to that purpose. Id., at 169, 83 To find a violation of that Clause here, S.Ct., at 568. This Court has said that these however, is not to hold that the Clause pre- seven factors are ‘‘neither exhaustive nor vents Kansas, or other States, from enacting dispositive,’’ but nonetheless ‘‘helpful.’’ dangerous sexual offender statutes. A stat- Ward, 448 U.S., at 249, 100 S.Ct., at 2641– ute that operates prospectively, for example, 2642. Paraphrasing them here, I believe the does not offend the Ex Post Facto Clause. Act before us involves an affirmative re- Weaver, 450 U.S., at 29, 101 S.Ct., at 964– straint historically regarded as punishment; 965. Neither does it offend the Ex Post imposed upon behavior already a crime after Facto Clause for a State to sentence offend- a finding of scienter; which restraint, name- ers to the fully authorized sentence, to seek ly, confinement, serves a traditional aim of consecutive, rather than concurrent, sen- punishment, does not primarily serve an al- tences, or to invoke recidivism statutes to ternative purpose (such as treatment), and is lengthen imprisonment. Moreover, a statute excessive in relation to any alternative pur- that operates retroactively, like Kansas’ stat- pose assigned. 372 U.S., at 168–169, 83 S.Ct., at 567–568. ute, nonetheless does not offend the Clause if the confinement that it imposes is not pun- This is not to say that each of the factors ishment—if, that is to say, the legislature the Court mentioned in Mendoza–Martinez does not simply add a later criminal punish- on balance argues here in favor of a constitu- tional characterization as ‘‘punishment.’’ It ment to an earlier one. Ibid. is not to say that I have found ‘‘a single S 396The statutory provisions before us do ‘formula’ for identifying those legislative amount to punishment primarily because, as changes that have a sufficient effect on I have said, the legislature did not tailor the S 395substantive crimes or punishments to fall statute to fit the nonpunitive civil aim of within the constitutional prohibition,’’ Mor- treatment, which it concedes exists in Hen- ales, 514 U.S., at 509, 115 S.Ct., at 1603; see dricks’ case. The Clause in these circum- also Halper, 490 U.S., at 447, 109 S.Ct., at stances does not stand as an obstacle to 1901; id., at 453, 109 S.Ct., at 1904 (KEN- achieving important protections for the pub- NEDY, J., concurring). We have not previ- lic’s safety; rather it provides an assurance ously done so, and I do not do so here. that, where so significant a restriction of an Rather, I have pointed to those features of individual’s basic freedoms is at issue, a State the Act itself, in the context of this litigation, cannot cut corners. Rather, the legislature that lead me to conclude, in light of our must hew to the Constitution’s liberty-pro- precedent, that the added confinement the Act imposes upon Hendricks is basically pu- tecting line. See The Federalist No. 78, p. nitive. This analysis, rooted in the facts 466 (C. Rossiter ed. 1961) (A. Hamilton). surrounding Kansas’ failure to treat Hen- I therefore would affirm the judgment be- dricks, cannot answer the question whether low. 521 U.S. 398 KANSAS v. HENDRICKS 2099 Cite as 117 S.Ct. 2072 (1997)

S 397APPENDIX TO OPINION OF BREYER, J. SELECTED SEXUAL OFFENSE COMMITMENT STATUTES (Kansas is the only State that answers ‘‘yes’’ to all three categories)

Fails to Consider Delays Less Restrictive Applies to State Treatment Alternatives Pre–Act Crimes

Ariz.Rev.Stat. Ann. § 13–4601 Yes No * et seq. (Supp.1996–1997)

Cal. Welf. & Inst.Code Ann. Yes No Yes § 6600 et seq. (West Supp.1997)

Colo.Rev.Stat. § 16–11.7–101 No Yes Sometimes et seq. (Supp.1996)

Conn. Gen.Stat. § 17a–566 et seq. No * * (1992 and Supp.1996)

Ill. Comp. Stat., ch. 725, § 205 No No et seq. (1994)

Iowa Code Ann. ch. 709C Yes Yes No (Supp.1996)

Kan. Stat. Ann. § 59–29a01 Yes Yes Yes et seq. (1994)

Mass. Gen. Laws, ch. 123A No * * (Supp.1997)

Minn.Stat. Ann., ch. 253B Sometimes No Yes (1994 and Supp.1996–1997)

S 398Neb.Rev.Stat. § 29–2923 et No No Generally not seq. (Supp.1996)

N.J. Stat. Ann. § 30:4–82.4 et seq. Sometimes No * (West 1997)

N.M. Stat. Ann. § 43–1–1 et seq. No No * (1993)

Ore.Rev. Stat. § 426.510 et seq. No Yes Generally not (1995)

Tenn.Code Ann. § 33–6–301 No Yes * et seq. (1984 and Supp.1996)

Utah Code Ann. § 77–16–1 et seq. No Yes Generally not (1995)

Wash. Rev.Code Ann. § 71.09.01 Yes No Yes et seq. (1992 and Supp.1996–1997)

Wis. Stat. § 980.01 et seq. (Supp. Yes No Yes 1993–1994)

(* = designation that the statute does not specify) ,