SELING v. YOUNG

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SELING v. YOUNG ( No. 99-1185 )
192 F. 3d 870, reversed and remanded.

SELING, SUPERINTENDENT, SPECIAL COMMITMENT CENTER v. YOUNG

certiorari to the united states court of appeals for the ninth circuit


No. 99–1185. Argued October 31, 2000—Decided January 17, 2001

Washington State’s Community Protection Act of 1990 (Act) authorizes the civil commitment of “sexually violent predators,” persons who suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence. Respondent Young is confined under the Act at the Special Commitment Center (Center), for which petitioner is the superintendent. Young’s challenges to his commitment in state court proved largely unsuccessful. Young then instituted a habeas action under 28 U. S. C. §2254, seeking release from confinement. The District Court initially granted the writ, concluding that the Act was unconstitutional. While the superintendent’s appeal was pending, this Court decided Kansas v. Hendricks, 521 U. S. 346, holding that a similar commitment scheme, Kansas’ Sexually Violent Predator Act, on its face, met substantive due process requirements, was nonpunitive, and thus did not violate the Double Jeopardy and Ex Post Facto Clauses. The Ninth Circuit remanded for reconsideration in light of Hendricks . The District Court then denied Young’s petition. In particular, the District Court determined that, because the Washington Act is civil, Young’s double jeopardy and ex post facto claims must fail. The Ninth Circuit reversed that ruling. The “linchpin” of Young’s claims, the court reasoned, was whether the Act was punitive “as applied” to Young. The court did not read Hendricks to preclude the possibility that the Act could be punitive as applied. Reasoning that actual confinement conditions could divest a facially valid statute of its civil label upon a showing by the clearest proof that the statutory scheme is punitive in effect, the court remanded the case for the District Court to determine whether the conditions at the Center rendered the Act punitive as applied to Young.

Held : An Act, found to be civil, cannot be deemed punitive “as applied” to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release. Pp. 9–16.

(a) Respondent cannot obtain release through an “as-applied” challenge to the Act on double jeopardy and ex post facto grounds. The Act is strikingly similar to, and, in fact, was the pattern for, the Kansas Act upheld in Hendricks. Among other things, the Court there applied the principle that determining the civil or punitive nature of an Act must begin with reference to its text and legislative history. See 521 U. S., at 360–369. Subsequently, the Court expressly disapproved of evaluating an Act’s civil nature by reference to its effect on a single individual, holding, instead, that courts must focus on a variety of factors considered in relation to the statute on its face, and that the clearest proof is required to override legislative intent and conclude that an Act denominated civil is punitive in purpose or effect. Hudson v. United States, 522 U. S. 93. With this in mind, the Ninth Circuit’s “as-applied” analysis for double jeopardy and ex post facto claims must be rejected as fundamentally flawed. This Court does not deny the seriousness of some of respondent’s allegations. Nor does the Court express any view as to how his allegations would bear on a court determining in the first instance whether Washington’s confinement scheme is civil. Here, however, the Court evaluates respondent’s allegations under the assumption that the Act is civil, as the Washington Supreme Court held and the Ninth Circuit acknowledged. The Court agrees with petitioner that an “as-applied” analysis would prove unworkable. Such an analysis would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme’s validity under the Double Jeopardy and Ex Post Facto Clauses. Confinement is not a fixed event, but extends over time under conditions that are subject to change. The particular features of confinement may affect how a confinement scheme is evaluated to determine whether it is civil or punitive, but it remains no less true that the query must be answered definitively. A confinement scheme’s civil nature cannot be altered based merely on vagaries in the authorizing statute’s implementation. The Ninth Circuit’s “as-applied” analysis does not comport with precedents in which this Court evaluated the validity of confinement schemes. See, e.g., Allen v. Illinois , 478 U. S. 364. Such cases presented the question whether the Act at issue was punitive, whereas permitting respondent’s as-applied challenge would invite an end run around the Washington Supreme Court’s decision that the Act is civil when that decision is not before this Court. Pp. 9–13.

(b) Today’s decision does not mean that respondent and others committed as sexually violent predators have no remedy for the alleged conditions and treatment regime at the Center. The Act gives them the right to adequate care and individualized treatment. It is for the Washington courts to determine whether the Center is operating in accordance with state law and provide a remedy. Those courts also remain competent to adjudicate and remedy challenges to civil confinement schemes arising under the Federal Constitution. Because the Washington Supreme Court has held that the Act is civil in nature, designed to incapacitate and to treat, due process requires that the conditions and duration of confinement under the Act bear some reasonable relation to the purpose for which persons are committed. E.g., Foucha v. Louisiana, 504 U. S. 71. Finally, the Court notes that an action under 42 U. S. C. §1983 is pending against the Center and that the Center operates under an injunction requiring it to take steps to improve confinement conditions. Pp. 13–15.

(c) This case gives the Court no occasion to consider how a confinement scheme’s civil nature relates to other constitutional challenges, such as due process, or to consider the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. Whether such a scheme is punitive has been the threshold question for some constitutional challenges. See, e.g., Allen, supra. However, the Court has not squarely addressed the relevance of confinement conditions to a first instance determination, and that question need not be resolved here. Pp. 15–16.

192 F. 3d 870, reversed and remanded.

O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a concurring opinion, in which Souter, J., joined. Thomas, J., filed an opinion concurring in the judgment. Stevens, J., filed a dissenting opinion.


TOP

Dissent

MARK SELING, SUPERINTENDENT, SPECIAL
COMMITMENT CENTER, PETITIONER v.
ANDRE BRIGHAM YOUNG

on writ of certiorari to the united states court of appeals for the ninth circuit


[January 17, 2001]

Justice Stevens , dissenting.

A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as “criminal” or “civil” in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks , 521 U. S. 346 (1997) (reversing, by a 5 to 4 vote, a decision of the Kansas Supreme Court invalidating Kansas’ Sexually Violent Predator Act); Allen v. Illinois , 478 U. S. 364 (1986) (upholding, by a 5 to 4 vote, Illinois’ Sexually Dangerous Persons Act); In re Young , 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5 to 4 vote, the provisions of Washington’s Community Protection Act of 1990 dealing with sexually violent predators).

It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Allen, 478 U. S., at 369 (quoting United States v. Ward , 448 U. S. 242, 248–249 (1980) ) (emphasis added). See also Hudson v. United States, 522 U. S. 93, 100, 105 (1997) . Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks , 521 U. S., at 361, 367–369; Schall v. Martin , 467 U. S. 253, 269–271 (1984) ; Allen , 478 U. S., at 369, 373–374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young’s petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no way runs afoul of Hudson v. United States , 522 U. S. 93 (1997) . Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect. 1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual. 2 Id., at 101–102.

To be sure, the question whether an Act is civil or punitive in nature “is initially one of statutory construction.” Ante , at 9 (majority opinion). However, under the majority’s analysis, there is no inquiry beyond that of statutory construction. Ante , at 11. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a “fixed event,” conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, the evidence of such conditions is most likely not to constitute the requisite “clearest proof.” This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute. 3

In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, in many respects, they receive significantly worse treatment. 4 If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals’ conclusion that respondent should be given the opportunity to come forward with the “clearest proof” that his allegations are true.

Accordingly, I respectfully dissent.


Notes

1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997) , courts may never look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. See ante, at 1. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges “at any time.” Ante, at 4. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive “either in purpose or effect.” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997) ; Schall v. Martin, 467 U. S. 253, 269–271 (1984) ; Allen v. Illinois, 478 U. S. 364, 369, 373–374 (1986) .

2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.

3 In this case, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their success in the courts, however, has had little practical impact.

4 Under such conditions, Young has now served longer in prison following the completion of his sentence than he did on the sentence itself.


TOP

Dissent

MARK SELING, SUPERINTENDENT, SPECIAL
COMMITMENT CENTER, PETITIONER v.
ANDRE BRIGHAM YOUNG

on writ of certiorari to the united states court of appeals for the ninth circuit


[January 17, 2001]

Justice Stevens , dissenting.

A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as “criminal” or “civil” in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks , 521 U. S. 346 (1997) (reversing, by a 5 to 4 vote, a decision of the Kansas Supreme Court invalidating Kansas’ Sexually Violent Predator Act); Allen v. Illinois , 478 U. S. 364 (1986) (upholding, by a 5 to 4 vote, Illinois’ Sexually Dangerous Persons Act); In re Young , 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5 to 4 vote, the provisions of Washington’s Community Protection Act of 1990 dealing with sexually violent predators).

It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Allen, 478 U. S., at 369 (quoting United States v. Ward , 448 U. S. 242, 248–249 (1980) ) (emphasis added). See also Hudson v. United States, 522 U. S. 93, 100, 105 (1997) . Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks , 521 U. S., at 361, 367–369; Schall v. Martin , 467 U. S. 253, 269–271 (1984) ; Allen , 478 U. S., at 369, 373–374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young’s petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no way runs afoul of Hudson v. United States , 522 U. S. 93 (1997) . Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect. 1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual. 2 Id., at 101–102.

To be sure, the question whether an Act is civil or punitive in nature “is initially one of statutory construction.” Ante , at 9 (majority opinion). However, under the majority’s analysis, there is no inquiry beyond that of statutory construction. Ante , at 11. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a “fixed event,” conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, the evidence of such conditions is most likely not to constitute the requisite “clearest proof.” This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute. 3

In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, in many respects, they receive significantly worse treatment. 4 If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals’ conclusion that respondent should be given the opportunity to come forward with the “clearest proof” that his allegations are true.

Accordingly, I respectfully dissent.


Notes

1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997) , courts may never look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. See ante, at 1. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges “at any time.” Ante, at 4. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive “either in purpose or effect.” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997) ; Schall v. Martin, 467 U. S. 253, 269–271 (1984) ; Allen v. Illinois, 478 U. S. 364, 369, 373–374 (1986) .

2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.

3 In this case, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their success in the courts, however, has had little practical impact.

4 Under such conditions, Young has now served longer in prison following the completion of his sentence than he did on the sentence itself.


TOP

Dissent

MARK SELING, SUPERINTENDENT, SPECIAL
COMMITMENT CENTER, PETITIONER v.
ANDRE BRIGHAM YOUNG

on writ of certiorari to the united states court of appeals for the ninth circuit


[January 17, 2001]

Justice Stevens , dissenting.

A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as “criminal” or “civil” in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks , 521 U. S. 346 (1997) (reversing, by a 5 to 4 vote, a decision of the Kansas Supreme Court invalidating Kansas’ Sexually Violent Predator Act); Allen v. Illinois , 478 U. S. 364 (1986) (upholding, by a 5 to 4 vote, Illinois’ Sexually Dangerous Persons Act); In re Young , 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5 to 4 vote, the provisions of Washington’s Community Protection Act of 1990 dealing with sexually violent predators).

It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Allen, 478 U. S., at 369 (quoting United States v. Ward , 448 U. S. 242, 248–249 (1980) ) (emphasis added). See also Hudson v. United States, 522 U. S. 93, 100, 105 (1997) . Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks , 521 U. S., at 361, 367–369; Schall v. Martin , 467 U. S. 253, 269–271 (1984) ; Allen , 478 U. S., at 369, 373–374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young’s petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no way runs afoul of Hudson v. United States , 522 U. S. 93 (1997) . Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect. 1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual. 2 Id., at 101–102.

To be sure, the question whether an Act is civil or punitive in nature “is initially one of statutory construction.” Ante , at 9 (majority opinion). However, under the majority’s analysis, there is no inquiry beyond that of statutory construction. Ante , at 11. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a “fixed event,” conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, the evidence of such conditions is most likely not to constitute the requisite “clearest proof.” This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute. 3

In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, in many respects, they receive significantly worse treatment. 4 If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals’ conclusion that respondent should be given the opportunity to come forward with the “clearest proof” that his allegations are true.

Accordingly, I respectfully dissent.


Notes

1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997) , courts may never look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. See ante, at 1. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges “at any time.” Ante, at 4. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive “either in purpose or effect.” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997) ; Schall v. Martin, 467 U. S. 253, 269–271 (1984) ; Allen v. Illinois, 478 U. S. 364, 369, 373–374 (1986) .

2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.

3 In this case, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their success in the courts, however, has had little practical impact.

4 Under such conditions, Young has now served longer in prison following the completion of his sentence than he did on the sentence itself.


TOP

Dissent

MARK SELING, SUPERINTENDENT, SPECIAL
COMMITMENT CENTER, PETITIONER v.
ANDRE BRIGHAM YOUNG

on writ of certiorari to the united states court of appeals for the ninth circuit


[January 17, 2001]

Justice Stevens , dissenting.

A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as “criminal” or “civil” in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks , 521 U. S. 346 (1997) (reversing, by a 5 to 4 vote, a decision of the Kansas Supreme Court invalidating Kansas’ Sexually Violent Predator Act); Allen v. Illinois , 478 U. S. 364 (1986) (upholding, by a 5 to 4 vote, Illinois’ Sexually Dangerous Persons Act); In re Young , 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5 to 4 vote, the provisions of Washington’s Community Protection Act of 1990 dealing with sexually violent predators).

It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Allen, 478 U. S., at 369 (quoting United States v. Ward , 448 U. S. 242, 248–249 (1980) ) (emphasis added). See also Hudson v. United States, 522 U. S. 93, 100, 105 (1997) . Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks , 521 U. S., at 361, 367–369; Schall v. Martin , 467 U. S. 253, 269–271 (1984) ; Allen , 478 U. S., at 369, 373–374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young’s petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no way runs afoul of Hudson v. United States , 522 U. S. 93 (1997) . Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect. 1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual. 2 Id., at 101–102.

To be sure, the question whether an Act is civil or punitive in nature “is initially one of statutory construction.” Ante , at 9 (majority opinion). However, under the majority’s analysis, there is no inquiry beyond that of statutory construction. Ante , at 11. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a “fixed event,” conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, the evidence of such conditions is most likely not to constitute the requisite “clearest proof.” This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute. 3

In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, in many respects, they receive significantly worse treatment. 4 If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals’ conclusion that respondent should be given the opportunity to come forward with the “clearest proof” that his allegations are true.

Accordingly, I respectfully dissent.


Notes

1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997) , courts may never look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. See ante, at 1. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges “at any time.” Ante, at 4. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive “either in purpose or effect.” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997) ; Schall v. Martin, 467 U. S. 253, 269–271 (1984) ; Allen v. Illinois, 478 U. S. 364, 369, 373–374 (1986) .

2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.

3 In this case, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their success in the courts, however, has had little practical impact.

4 Under such conditions, Young has now served longer in prison following the completion of his sentence than he did on the sentence itself.


TOP

Dissent

MARK SELING, SUPERINTENDENT, SPECIAL
COMMITMENT CENTER, PETITIONER v.
ANDRE BRIGHAM YOUNG

on writ of certiorari to the united states court of appeals for the ninth circuit


[January 17, 2001]

Justice Stevens , dissenting.

A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as “criminal” or “civil” in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks , 521 U. S. 346 (1997) (reversing, by a 5 to 4 vote, a decision of the Kansas Supreme Court invalidating Kansas’ Sexually Violent Predator Act); Allen v. Illinois , 478 U. S. 364 (1986) (upholding, by a 5 to 4 vote, Illinois’ Sexually Dangerous Persons Act); In re Young , 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5 to 4 vote, the provisions of Washington’s Community Protection Act of 1990 dealing with sexually violent predators).

It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Allen, 478 U. S., at 369 (quoting United States v. Ward , 448 U. S. 242, 248–249 (1980) ) (emphasis added). See also Hudson v. United States, 522 U. S. 93, 100, 105 (1997) . Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks , 521 U. S., at 361, 367–369; Schall v. Martin , 467 U. S. 253, 269–271 (1984) ; Allen , 478 U. S., at 369, 373–374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young’s petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no way runs afoul of Hudson v. United States , 522 U. S. 93 (1997) . Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect. 1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual. 2 Id., at 101–102.

To be sure, the question whether an Act is civil or punitive in nature “is initially one of statutory construction.” Ante , at 9 (majority opinion). However, under the majority’s analysis, there is no inquiry beyond that of statutory construction. Ante , at 11. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a “fixed event,” conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, the evidence of such conditions is most likely not to constitute the requisite “clearest proof.” This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute. 3

In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, in many respects, they receive significantly worse treatment. 4 If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals’ conclusion that respondent should be given the opportunity to come forward with the “clearest proof” that his allegations are true.

Accordingly, I respectfully dissent.


Notes

1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997) , courts may never look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. See ante, at 1. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges “at any time.” Ante, at 4. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive “either in purpose or effect.” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997) ; Schall v. Martin, 467 U. S. 253, 269–271 (1984) ; Allen v. Illinois, 478 U. S. 364, 369, 373–374 (1986) .

2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.

3 In this case, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their success in the courts, however, has had little practical impact.

4 Under such conditions, Young has now served longer in prison following the completion of his sentence than he did on the sentence itself.


TOP

Dissent

MARK SELING, SUPERINTENDENT, SPECIAL
COMMITMENT CENTER, PETITIONER v.
ANDRE BRIGHAM YOUNG

on writ of certiorari to the united states court of appeals for the ninth circuit


[January 17, 2001]

Justice Stevens , dissenting.

A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as “criminal” or “civil” in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks , 521 U. S. 346 (1997) (reversing, by a 5 to 4 vote, a decision of the Kansas Supreme Court invalidating Kansas’ Sexually Violent Predator Act); Allen v. Illinois , 478 U. S. 364 (1986) (upholding, by a 5 to 4 vote, Illinois’ Sexually Dangerous Persons Act); In re Young , 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5 to 4 vote, the provisions of Washington’s Community Protection Act of 1990 dealing with sexually violent predators).

It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Allen, 478 U. S., at 369 (quoting United States v. Ward , 448 U. S. 242, 248–249 (1980) ) (emphasis added). See also Hudson v. United States, 522 U. S. 93, 100, 105 (1997) . Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks , 521 U. S., at 361, 367–369; Schall v. Martin , 467 U. S. 253, 269–271 (1984) ; Allen , 478 U. S., at 369, 373–374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young’s petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no way runs afoul of Hudson v. United States , 522 U. S. 93 (1997) . Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect. 1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual. 2 Id., at 101–102.

To be sure, the question whether an Act is civil or punitive in nature “is initially one of statutory construction.” Ante , at 9 (majority opinion). However, under the majority’s analysis, there is no inquiry beyond that of statutory construction. Ante , at 11. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a “fixed event,” conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, the evidence of such conditions is most likely not to constitute the requisite “clearest proof.” This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute. 3

In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, in many respects, they receive significantly worse treatment. 4 If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals’ conclusion that respondent should be given the opportunity to come forward with the “clearest proof” that his allegations are true.

Accordingly, I respectfully dissent.


Notes

1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997) , courts may never look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. See ante, at 1. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges “at any time.” Ante, at 4. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive “either in purpose or effect.” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997) ; Schall v. Martin, 467 U. S. 253, 269–271 (1984) ; Allen v. Illinois, 478 U. S. 364, 369, 373–374 (1986) .

2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.

3 In this case, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their success in the courts, however, has had little practical impact.

4 Under such conditions, Young has now served longer in prison following the completion of his sentence than he did on the sentence itself.


TOP

Dissent

MARK SELING, SUPERINTENDENT, SPECIAL
COMMITMENT CENTER, PETITIONER v.
ANDRE BRIGHAM YOUNG

on writ of certiorari to the united states court of appeals for the ninth circuit


[January 17, 2001]

Justice Stevens , dissenting.

A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as “criminal” or “civil” in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks , 521 U. S. 346 (1997) (reversing, by a 5 to 4 vote, a decision of the Kansas Supreme Court invalidating Kansas’ Sexually Violent Predator Act); Allen v. Illinois , 478 U. S. 364 (1986) (upholding, by a 5 to 4 vote, Illinois’ Sexually Dangerous Persons Act); In re Young , 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5 to 4 vote, the provisions of Washington’s Community Protection Act of 1990 dealing with sexually violent predators).

It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Allen, 478 U. S., at 369 (quoting United States v. Ward , 448 U. S. 242, 248–249 (1980) ) (emphasis added). See also Hudson v. United States, 522 U. S. 93, 100, 105 (1997) . Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks , 521 U. S., at 361, 367–369; Schall v. Martin , 467 U. S. 253, 269–271 (1984) ; Allen , 478 U. S., at 369, 373–374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young’s petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no way runs afoul of Hudson v. United States , 522 U. S. 93 (1997) . Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect. 1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual. 2 Id., at 101–102.

To be sure, the question whether an Act is civil or punitive in nature “is initially one of statutory construction.” Ante , at 9 (majority opinion). However, under the majority’s analysis, there is no inquiry beyond that of statutory construction. Ante , at 11. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a “fixed event,” conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, the evidence of such conditions is most likely not to constitute the requisite “clearest proof.” This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute. 3

In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, in many respects, they receive significantly worse treatment. 4 If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals’ conclusion that respondent should be given the opportunity to come forward with the “clearest proof” that his allegations are true.

Accordingly, I respectfully dissent.


Notes

1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997) , courts may never look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. See ante, at 1. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges “at any time.” Ante, at 4. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive “either in purpose or effect.” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997) ; Schall v. Martin, 467 U. S. 253, 269–271 (1984) ; Allen v. Illinois, 478 U. S. 364, 369, 373–374 (1986) .

2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.

3 In this case, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their success in the courts, however, has had little practical impact.

4 Under such conditions, Young has now served longer in prison following the completion of his sentence than he did on the sentence itself.


TOP

Dissent

MARK SELING, SUPERINTENDENT, SPECIAL
COMMITMENT CENTER, PETITIONER v.
ANDRE BRIGHAM YOUNG

on writ of certiorari to the united states court of appeals for the ninth circuit


[January 17, 2001]

Justice Stevens , dissenting.

A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as “criminal” or “civil” in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks , 521 U. S. 346 (1997) (reversing, by a 5 to 4 vote, a decision of the Kansas Supreme Court invalidating Kansas’ Sexually Violent Predator Act); Allen v. Illinois , 478 U. S. 364 (1986) (upholding, by a 5 to 4 vote, Illinois’ Sexually Dangerous Persons Act); In re Young , 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5 to 4 vote, the provisions of Washington’s Community Protection Act of 1990 dealing with sexually violent predators).

It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Allen, 478 U. S., at 369 (quoting United States v. Ward , 448 U. S. 242, 248–249 (1980) ) (emphasis added). See also Hudson v. United States, 522 U. S. 93, 100, 105 (1997) . Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks , 521 U. S., at 361, 367–369; Schall v. Martin , 467 U. S. 253, 269–271 (1984) ; Allen , 478 U. S., at 369, 373–374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young’s petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no way runs afoul of Hudson v. United States , 522 U. S. 93 (1997) . Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect. 1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual. 2 Id., at 101–102.

To be sure, the question whether an Act is civil or punitive in nature “is initially one of statutory construction.” Ante , at 9 (majority opinion). However, under the majority’s analysis, there is no inquiry beyond that of statutory construction. Ante , at 11. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a “fixed event,” conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, the evidence of such conditions is most likely not to constitute the requisite “clearest proof.” This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute. 3

In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, in many respects, they receive significantly worse treatment. 4 If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals’ conclusion that respondent should be given the opportunity to come forward with the “clearest proof” that his allegations are true.

Accordingly, I respectfully dissent.


Notes

1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997) , courts may never look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. See ante, at 1. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges “at any time.” Ante, at 4. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive “either in purpose or effect.” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997) ; Schall v. Martin, 467 U. S. 253, 269–271 (1984) ; Allen v. Illinois, 478 U. S. 364, 369, 373–374 (1986) .

2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.

3 In this case, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their success in the courts, however, has had little practical impact.

4 Under such conditions, Young has now served longer in prison following the completion of his sentence than he did on the sentence itself.


TOP

Dissent

MARK SELING, SUPERINTENDENT, SPECIAL
COMMITMENT CENTER, PETITIONER v.
ANDRE BRIGHAM YOUNG

on writ of certiorari to the united states court of appeals for the ninth circuit


[January 17, 2001]

Justice Stevens , dissenting.

A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as “criminal” or “civil” in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks , 521 U. S. 346 (1997) (reversing, by a 5 to 4 vote, a decision of the Kansas Supreme Court invalidating Kansas’ Sexually Violent Predator Act); Allen v. Illinois , 478 U. S. 364 (1986) (upholding, by a 5 to 4 vote, Illinois’ Sexually Dangerous Persons Act); In re Young , 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5 to 4 vote, the provisions of Washington’s Community Protection Act of 1990 dealing with sexually violent predators).

It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Allen, 478 U. S., at 369 (quoting United States v. Ward , 448 U. S. 242, 248–249 (1980) ) (emphasis added). See also Hudson v. United States, 522 U. S. 93, 100, 105 (1997) . Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks , 521 U. S., at 361, 367–369; Schall v. Martin , 467 U. S. 253, 269–271 (1984) ; Allen , 478 U. S., at 369, 373–374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young’s petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no way runs afoul of Hudson v. United States , 522 U. S. 93 (1997) . Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect. 1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual. 2 Id., at 101–102.

To be sure, the question whether an Act is civil or punitive in nature “is initially one of statutory construction.” Ante , at 9 (majority opinion). However, under the majority’s analysis, there is no inquiry beyond that of statutory construction. Ante , at 11. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a “fixed event,” conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, the evidence of such conditions is most likely not to constitute the requisite “clearest proof.” This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute. 3

In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, in many respects, they receive significantly worse treatment. 4 If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals’ conclusion that respondent should be given the opportunity to come forward with the “clearest proof” that his allegations are true.

Accordingly, I respectfully dissent.


Notes

1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997) , courts may never look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. See ante, at 1. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges “at any time.” Ante, at 4. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive “either in purpose or effect.” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997) ; Schall v. Martin, 467 U. S. 253, 269–271 (1984) ; Allen v. Illinois, 478 U. S. 364, 369, 373–374 (1986) .

2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.

3 In this case, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their success in the courts, however, has had little practical impact.

4 Under such conditions, Young has now served longer in prison following the completion of his sentence than he did on the sentence itself.


TOP

Dissent

MARK SELING, SUPERINTENDENT, SPECIAL
COMMITMENT CENTER, PETITIONER v.
ANDRE BRIGHAM YOUNG

on writ of certiorari to the united states court of appeals for the ninth circuit


[January 17, 2001]

Justice Stevens , dissenting.

A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as “criminal” or “civil” in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks , 521 U. S. 346 (1997) (reversing, by a 5 to 4 vote, a decision of the Kansas Supreme Court invalidating Kansas’ Sexually Violent Predator Act); Allen v. Illinois , 478 U. S. 364 (1986) (upholding, by a 5 to 4 vote, Illinois’ Sexually Dangerous Persons Act); In re Young , 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5 to 4 vote, the provisions of Washington’s Community Protection Act of 1990 dealing with sexually violent predators).

It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Allen, 478 U. S., at 369 (quoting United States v. Ward , 448 U. S. 242, 248–249 (1980) ) (emphasis added). See also Hudson v. United States, 522 U. S. 93, 100, 105 (1997) . Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks , 521 U. S., at 361, 367–369; Schall v. Martin , 467 U. S. 253, 269–271 (1984) ; Allen , 478 U. S., at 369, 373–374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young’s petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no way runs afoul of Hudson v. United States , 522 U. S. 93 (1997) . Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect. 1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual. 2 Id., at 101–102.

To be sure, the question whether an Act is civil or punitive in nature “is initially one of statutory construction.” Ante , at 9 (majority opinion). However, under the majority’s analysis, there is no inquiry beyond that of statutory construction. Ante , at 11. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a “fixed event,” conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, the evidence of such conditions is most likely not to constitute the requisite “clearest proof.” This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute. 3

In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, in many respects, they receive significantly worse treatment. 4 If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals’ conclusion that respondent should be given the opportunity to come forward with the “clearest proof” that his allegations are true.

Accordingly, I respectfully dissent.


Notes

1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997) , courts may never look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. See ante, at 1. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges “at any time.” Ante, at 4. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive “either in purpose or effect.” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997) ; Schall v. Martin, 467 U. S. 253, 269–271 (1984) ; Allen v. Illinois, 478 U. S. 364, 369, 373–374 (1986) .

2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.

3 In this case, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their success in the courts, however, has had little practical impact.

4 Under such conditions, Young has now served longer in prison following the completion of his sentence than he did on the sentence itself.


TOP

Dissent

MARK SELING, SUPERINTENDENT, SPECIAL
COMMITMENT CENTER, PETITIONER v.
ANDRE BRIGHAM YOUNG

on writ of certiorari to the united states court of appeals for the ninth circuit


[January 17, 2001]

Justice Stevens , dissenting.

A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as “criminal” or “civil” in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks , 521 U. S. 346 (1997) (reversing, by a 5 to 4 vote, a decision of the Kansas Supreme Court invalidating Kansas’ Sexually Violent Predator Act); Allen v. Illinois , 478 U. S. 364 (1986) (upholding, by a 5 to 4 vote, Illinois’ Sexually Dangerous Persons Act); In re Young , 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5 to 4 vote, the provisions of Washington’s Community Protection Act of 1990 dealing with sexually violent predators).

It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Allen, 478 U. S., at 369 (quoting United States v. Ward , 448 U. S. 242, 248–249 (1980) ) (emphasis added). See also Hudson v. United States, 522 U. S. 93, 100, 105 (1997) . Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks , 521 U. S., at 361, 367–369; Schall v. Martin , 467 U. S. 253, 269–271 (1984) ; Allen , 478 U. S., at 369, 373–374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young’s petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no way runs afoul of Hudson v. United States , 522 U. S. 93 (1997) . Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect. 1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual. 2 Id., at 101–102.

To be sure, the question whether an Act is civil or punitive in nature “is initially one of statutory construction.” Ante , at 9 (majority opinion). However, under the majority’s analysis, there is no inquiry beyond that of statutory construction. Ante , at 11. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a “fixed event,” conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, the evidence of such conditions is most likely not to constitute the requisite “clearest proof.” This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute. 3

In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, in many respects, they receive significantly worse treatment. 4 If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals’ conclusion that respondent should be given the opportunity to come forward with the “clearest proof” that his allegations are true.

Accordingly, I respectfully dissent.


Notes

1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997) , courts may never look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. See ante, at 1. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges “at any time.” Ante, at 4. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive “either in purpose or effect.” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997) ; Schall v. Martin, 467 U. S. 253, 269–271 (1984) ; Allen v. Illinois, 478 U. S. 364, 369, 373–374 (1986) .

2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.

3 In this case, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their success in the courts, however, has had little practical impact.

4 Under such conditions, Young has now served longer in prison following the completion of his sentence than he did on the sentence itself.


TOP

Dissent

MARK SELING, SUPERINTENDENT, SPECIAL
COMMITMENT CENTER, PETITIONER v.
ANDRE BRIGHAM YOUNG

on writ of certiorari to the united states court of appeals for the ninth circuit


[January 17, 2001]

Justice Stevens , dissenting.

A sexual predator may be imprisoned for violating the law, and, if he is mentally ill, he may be committed to an institution until he is cured. Whether a specific statute authorizing the detention of such a person is properly viewed as “criminal” or “civil” in the context of federal constitutional issues is often a question of considerable difficulty. See Kansas v. Hendricks , 521 U. S. 346 (1997) (reversing, by a 5 to 4 vote, a decision of the Kansas Supreme Court invalidating Kansas’ Sexually Violent Predator Act); Allen v. Illinois , 478 U. S. 364 (1986) (upholding, by a 5 to 4 vote, Illinois’ Sexually Dangerous Persons Act); In re Young , 122 Wash. 2d 1, 857 P. 2d 989 (1993) (en banc) (upholding, by a 5 to 4 vote, the provisions of Washington’s Community Protection Act of 1990 dealing with sexually violent predators).

It is settled, however, that the question whether a state statute is civil or criminal in nature for purposes of complying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ that the proceeding be civil, it must be considered criminal.” Allen, 478 U. S., at 369 (quoting United States v. Ward , 448 U. S. 242, 248–249 (1980) ) (emphasis added). See also Hudson v. United States, 522 U. S. 93, 100, 105 (1997) . Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose behind the statute and its actual effect. See Hendricks , 521 U. S., at 361, 367–369; Schall v. Martin , 467 U. S. 253, 269–271 (1984) ; Allen , 478 U. S., at 369, 373–374. As we have acknowledged in those cases, the question whether a statute is in fact punitive cannot always be answered solely by reference to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue the majority purports to resolve is whether an Act that is otherwise civil in nature can be deemed criminal in a specific instance based on evidence of its application to a particular prisoner. However, respondent Young’s petition did not present that issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evidence of the punitive purpose and effect of the Washington statute. See Amended Pet. for Writ of Habeas Corpus 6 and Supp. Brief on Remand 2, 6, 10–11, in No. C94–480C (WD Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no way runs afoul of Hudson v. United States , 522 U. S. 93 (1997) . Properly read, Hudson acknowledges that resolving whether an Act is civil or criminal in nature can take into account whether the statutory scheme has a punitive effect. 1 Id., at 99. What Hudson rejects is an approach not taken by respondent—one that bypasses this threshold question in favor of a dispositive focus on the sanction actually imposed on the specific individual. 2 Id., at 101–102.

To be sure, the question whether an Act is civil or punitive in nature “is initially one of statutory construction.” Ante , at 9 (majority opinion). However, under the majority’s analysis, there is no inquiry beyond that of statutory construction. Ante , at 11. In essence, the majority argues that because the constitutional query must be answered definitively and because confinement is not a “fixed event,” conditions of confinement should not be considered at all, except in the first challenge to a statute, when, as a practical matter, the evidence of such conditions is most likely not to constitute the requisite “clearest proof.” This seems to me quite wrong. If conditions of confinement are such that a detainee has been punished twice in violation of the Double Jeopardy Clause, it is irrelevant that the scheme has been previously labeled as civil without full knowledge of the effects of the statute. 3

In this case, Young has made detailed allegations concerning both the absence of treatment for his alleged mental illness and the starkly punitive character of the conditions of his confinement. If proved, those allegations establish not just that those detained pursuant to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, in many respects, they receive significantly worse treatment. 4 If those allegations are correct, the statute in question should be characterized as a criminal law for federal constitutional purposes. I therefore agree with the Court of Appeals’ conclusion that respondent should be given the opportunity to come forward with the “clearest proof” that his allegations are true.

Accordingly, I respectfully dissent.


Notes

1 In his concurrence, Justice Scalia concludes that, under the rule of Hudson v. United States, 522 U. S. 93 (1997) , courts may never look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. See ante, at 1. Justice Thomas, concurring in the judgment, would take Hudson even further, precluding implementation-based challenges “at any time.” Ante, at 4. However, for the reasons set out above, I believe that both concurrences misread Hudson. I also note that Hudson did not involve confinement. In cases that do involve confinement, this Court has relied on the principle that a statutory scheme must be deemed criminal if it was sufficiently punitive “either in purpose or effect.” See Kansas v. Hendricks, 521 U. S. 346, 361, 367–369 (1997) ; Schall v. Martin, 467 U. S. 253, 269–271 (1984) ; Allen v. Illinois, 478 U. S. 364, 369, 373–374 (1986) .

2 In response to my dissent, the Court has made it clear that it is simply holding that respondent may not prevail if he merely proves that the statute is punitive insofar as it has been applied to him. The question whether he may prevail if he can prove that the statute is punitive in its application to everyone confined under its provisions therefore remains open. In sum, the Court has rejected the narrow holding of the Ninth Circuit, but has not addressed the sufficiency of the broadest claim that petitioner has advanced.

3 In this case, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their success in the courts, however, has had little practical impact.

4 Under such conditions, Young has now served longer in prison following the completion of his sentence than he did on the sentence itself.