Seling v. Young

COMMIT- SPECIAL SUPERINTENDENT, SELING, YOUNG CENTER MENT 17, 2001 January 81, 2000 Decided October Argued 99-1185. No. Rehnqtjist, Court, in which of the opinion O’Connor, J., delivered Breyer, JJ., joined. Ginsburg, and Souter, Kennedy, Scalia, J., and C. J., post, joined, Souter, which opinion, concurring J., filed Scalia, post, judgment, concurring opinion Thomas, J., filed 267. p. 274. p. post, opinion, dissenting J., Stevens, filed 270. p. Attorney General Assistant Senior Hart, Maureen on her With petitioner. for cause argued Washington, General, Attorney Gregoire, Christine were briefs General, Attorney Assistant Sappington, Blackman Sarah General, Attorney Assistant Special Hackett, J. W. David Attorney Assistant Collins, Senior Berggren William General. respondent. for cause argued Boruchowitz C. Robert P. Hirsch, Dennis B. David were briefs himWith Jackson.* Christine Carroll, and Kan- State filed was reversal urging curiae amici brief *A R. Kansas, Stephen General Attorney Stovall, J. Carla al. et sas Gen- Attorney Assistant Maag, S. Jared Solicitor, and McAllister, State delivered the opinion of the Court. Justice O’Connor Washington State’s Community Protection Act of authorizes the civil commitment of “sexually pred- violent ators,” persons who suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence. Wash. Rev. Code §71.09.010 (1992). et seq. Respondent, Andre Brigham Young, is confined aas sexually predator violent at the Spe- cial Commitment Center (Center), for petitioner which is the superintendent. After respondent’s challenges to his com- mitment in state proved court largely unsuccessful, he insti- tuted a .habeas action under 28 U. S. C. §2254, seeking re- lease from confinement. The Washington Supreme Court had already held that the Act is civil, In re Young, 122Wash. 2d 857 P. (1993) (en 2d 989 banc), and this Court held a similar commitment scheme for sexually predators violent Kansas to be civil on its face, Kansas v. Hendricks, 521 U. S. The Court of Appeals for Ninth Circuit nev- ertheless concluded that respondent could challenge the stat- ute as being punitive “as applied” to him in violation of the eral, and by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salamr of Colorado, Robert A. Butterworth of Florida, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, M. Granholm Jennifer of Michigan, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, John J. Farmer, Jr., of New Jersey, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, Mark L. Earley of Virginia, and James E. Doyle of Wisconsin.

Briefs of amici curiae urging affirmance were filed for the California Atascadero State Hospital Section 6600 Civil Committees by Joel E. Krischer; and for the National Association of Criminal Defense Lawyers by Edward M. Chikofsky and Barbara E. Bergman. remanded and Clauses, Facto Post Ex and Jeopardy

Double hearing. evidentiary for District to the case I A ofAct Protection Community State’s Washington and laws about concerns citizens’ response (Act) awas ofOne offenders. sexually violent regarding procedures offend- such of commitment authorizes provisions Act’s Supp. (1992 and seq. et §71.09.010 Code Rev. Wash. ers. some- predator sexually violent a 2000). defines The crime awith, charged or of, convicted been has who one abnormality mental a from suffers who and violence sexual en- likely person makes disorder personality or confined if not violence sexual acts predatory gage 2000). (Supp. §71.09.020(1) facility. a secure incompetent found persons juveniles, prisoners, reaches insanity, by reason guilty found persons trial, stand of- sexually violent aof convicted any time persons and §71.09.030. act. overt recent a committed have who fense committed has who person a appears it Generally, when con- from released be about is offense sexually violent a alleging petition a attorney files prosecuting finement, That Ibid. predator. sexually violent ais person person trying and charging for process a triggers filing a afforded ishe during which predator, sexually violent aas (paid experts including counsel protections panoply hear- cause probable indigency), cases by State option. individual’s jury judge trial ing, burden bears the State trial, At §§71.09.040-71.09.050. a sexu- person doubt reasonable beyond a prove 71.09.060(1). § predator. ally violent preda- sexually violent ais person finding that Upon to the treatment care, and control, committed he is tor, services. health social department custody of care adequate right ahas person confined, Once Ibid. and individualized § treatment. 71.09.080(2). The person is also entitled to an annual examination of his mental condi- § tion. 71.09.070. If that examination indicates that the in- dividual’s condition is so changed that he is not likely to en- gage in predatory acts of sexual violence, state officialsmust authorize person petition the court for conditional release or discharge. §71.09.090(1). person The is entitled to a hearing at which the again State bears the burden of proving beyond a reasonable doubt that he is not safe to be at large. Ibid. person may also independently peti- tion the court for § release. 71.09.090(2). At a show cause hearing, if the court probable finds cause to believe that the person is longer no dangerous, a full hearing will be held at which the again State bears the burden proof. Ibid. The Act provides also procedure petition for condi- tional release to a less restrictive alternative to confinement. §71.09.090. Before ordering conditional release, the court must find that person will be treated a state certified sexual offender provider, treatment that there is a specific course of treatment, that housing exists that will be suffi- ciently secure protect the community, and that person is willing to comply with the treatment and supervision re- quirements. §71.09.092. Conditional release is subject to annual review until the person is unconditionally released. §§71.09.096,71.09.098.

B Respondent, Andre Brigham Young, was convicted of six rapes over three decades. App. to Pet. for Cert. 33a. Young was scheduled to be released prison from for his most recent conviction in October 1990. One day prior to his scheduled release, State petition filed a to commit Young as a sexually predator. violent Id., at 32a. At the commitment hearing, Young’s mental health ex- perts testified that there is no mental disorder that makes a person likely to reoffend and that there is way no predict accurately who will reoffend. The State called an expert records, that Young’s of review upon a testified, based

who other- not disorder personality severe a from Young suffered fea- antisocial and paranoid primarily with specified wise be classified would which paraphilia, a severe and tures, otherwise paraphilia or sadism sexual paraphilia either Asso- Psychiatric American generally See (rape). specified Disor- Mental of Manual Statistical and Diagnostic ciation, 1994). In (4th ed. 645-646, 673 634, 532, 530, 522-523, ders a constituted paraphilia severe opinion, expert’s state the expert State’s The Act. the abnormality under mental the with combination in condition, Young’s that concluded Young during which time span of disorder, the personality denial, persistent his recidivism, his crimes, his committed likely more it remorse, made or empathy lack his and sexually violent further commit would he that than jury The testified. rapes also Young’s victims The acts. sexually violent Young was unanimously concluded predator. commitments their appealed individual another Young and Jeop- Double the violated Act the arguing court, state Protection Equal and Process, Facto, Due Post ardy, Ex the respects, major In Constitution. Federal the Clauses Washington constitu- is Act the held Supreme (en (1993) 2dP. 2d Young, 122Wash. re tional. vio- concluded court banc). extent To rul- those principles, protection equal and process due lated Act. amendments subsequent reflected are ings supra. I-A, Part See double claimants’ reasoned court Washington The hinged on claims post ex and jeopardy facto prece- Court’s Following in nature. criminal is civil legis- Act, language examined court dents, the statutory effect purpose history, and lative clearly in- legislature found court The scheme. statutory lan- both scheme create tended turned then court history. legislative guage examine whether the actual impact of the Act is civil or criminal. The Act, the court concluded, is concerned with treating persons committed for a current mental abnormal- ity, and protecting society from the sexually violent acts as- sociated with that abnormality, rather than being concerned with criminal culpability. The court distinguished goals of incapacitation and treatment from goal punishment. The court found that the Washington Act is designed to fur- legitimate ther goals of civil confinement and that the claim- ants had failed provide proof to the contrary. 122 Wash. 2d, at 18-25, 857 P. 2d, at 996-1000.

The spawned Act several other challenges in state and fed eral court, two of which bear mention. Richard Turay, com mitted as a sexually violent predator, filed suit in Federal District against Court Center officials under Rev. Stat. §1979, 42 § U. S. C. 1983,alleging unconstitutional conditions of confinement and inadequate treatment at the Center. In 1994,a jury concluded that the Center had failed provide constitutionally adequate mental health treatment. App. 64-68. The court ordered officials at the Center to bring the institution up to constitutional standards, appointing a Special Master to monitor progress at the Center. The Cen ter currently operates under injunction. Turay v. Seling, 108 F. Supp. (WD 2d 1148 2000). Wash. See also Brief for Petitioner 8-9.

Turay also appealed his commitment as a sexually violent predator in state court, claiming, among other things, that conditions of confinement at the Center rendered the Washington “as applied” to him in violation of the Double Jeopardy Clause. The Washington Supreme Court ruled that Turay’s commitment was valid. In re Turay, 139Wash. 2d 379, 986 (1999)(en P. 2d 790 bane). The court explained that in Young, it had concluded that the Act is civil. 139 Wash. 2d, at 415, 986 P. 2d, at 809. The court also noted that this Court had recently held Kansas’ Sexually Violent Predator Act, nearly identical to Washington’s Act,

258 Supreme Washington Ibid. The face. be reasoning jeopardy, double theory Turay’s rejected asking resolved be must claim jeopardy double at 2d, P. 416-417, 986 Id., at civil. itself (1997)). States, S.U. United Hudson (citing constitu- for remedy Turay’s proper concluded court Center confinement violations tional relief. injunctive damages action § 1983 his was 2d, at P. 420, 2d, Wash.

C Court. before action tous brings That state confinement his challenges unsuccessful after 2254 §C.S.U. 28 under action habeas filed Young court, contended Young Center. the superintendent the against confinement his that and unconstitutional was Act the that District The release. immediate sought He illegal. was sub- violated Act that concluding writ, granted Court than rather criminal was Act process, due stantive post ex and jeopardy double violated it and civil, Weston, 898 Young v. Constitution. guarantees facto ap- 1995). superintendent The Wash. (WD 744 Supp. F. decided Court pending, was appeal While pealed. held which (1997), 346 Hendricks, S.U. 521 Kansas sub- met face, Act, Predator Violent Sexually Kansas’ and nonpunitive, was requirements, due process stantive Facto Post Ex and Jeopardy Double violate did thus remanded of Appeals Court Circuit Ninth The Clauses. reconsideration Court District case Young’s (1997). 3dF. Hendricks. light petition. Young’s denied District remand, On re- and reversed Circuit Ninth and appealed Young 3dF. part. affirmed in part manded ruling Court’s District affirmed Circuit Ninth due substantive violate did confinement Young’s illness mental prove State requirement process and dangerousness to justify confinement. Id., at 876. The Court of Appeals also left undisturbed the District Court’s conclusion that the procedural meets process due equal protection guarantees, and the District rejec- Court’s tion of Young’s challenges to his commitment proceedings. Id., at 876-877. Young did not petition seek a for a writ of certiorari to the Ninth Circuit for its decision affirming the District Court in these respects, and accordingly, those is- sues are not before this Court.

The Ninth Circuit reversed the District Court’s determi- nation that because the Washington Act is civil, Young’sdou- ble jeopardy and post ex claims must facto fail. The “linch- pin” of Young’s claims, the court reasoned, was whether the punitive was “as applied” to Young. Id., at 873. The court did not read this Court’s decision in Hendricks pre- clude the possibility that the Act could punitive be as ap- plied. The court reasoned that actual conditions of con- finement could divest a facially valid statute of its civil label upon a showing by the proof clearest the statutory scheme punitive in effect. 192 F. 3d, at 874.

The Court of Appeals reviewed Young’s claims that condi- tions of confinement at Center were and did not comport with process. due Id., at 875. Young alleged that for years, seven he had been subject to conditions more re- strictive than those placed on true civil commitment detain- ees, and even prisoners. state The Center, located wholly perimeter within the of a larger Department of Corrections (DOC) facility, relied on the DOC for a host of essential serv- ices, including library services, medical care, food, and secu- rity. More recently, Young claimed, the role of the DOC had increased to include daily security “walk-throughs.” Young contended that conditions and restrictions at the Center were not reasonably related to legitimate a nonpunitive goal, as residents were abused, confined to their rooms, subjected to random searches of their rooms and units, placed and under excessive security.

260 were Center the at conditions contended Young also Center The purpose. treatment Act's with

incompatible withholding and therapy sessions videotaping policy a had Center The treatment. to submit to refusal for privileges Special according to that, units housed were residents inappropriate clearly were litigation, Turay in the Master The program. treatment health mental ain persons for provid- treatment offender sex certified lacked still Center court- A release. possibility nowas Finally, there ers. concluded psychologist and advocate resident appointed fundamen- had the Center because report final his suspect to come had he years, many so changed over tally and punish managed to and designed was Center to release hope of any without life for individuals confine also See 875. 3d, F. setting. 192 restrictive less Supplemental Corpus, Habeas for Writ Petition Amended 8-9, 4-5, Judgment Alter Motion and Remand, on Brief Wash.), Record, (WD C94-480C in No. 24-26, 20, 15, 11-12, 167. and 155, 57, Nos. Doe. [the alleging “[b]y concluded Circuit Ninth The facts alleged Young applied, as punitive Act] is Washington 3d, at F. 192 relief.” him entitle would proved, if which, for Court District case remanded court The 875. Center to determine hearing Id., at Young. applied rendered certiorari, a writ petition granted Court This between conflict (2000), resolve 1017 S.U. Su- Washington Appeals Court Circuit Ninth re (1999), with 3dF. Compare Court. preme 2d P. 2d Wash. Turay, 139 Ninth held Supreme Washington As the II proceed we acknowledged, Circuit Washington nature. civil isAct Washington reviewed we scheme commitment ato strikingly similar four Terms ago in Kansas v. Hendricks, 521 (1997). U. S. 846 In fact, patterned Kansas its Act after Washington’s. See In re Hendricks, 259 Kan. 246, 249, 912 P. 2d 129, 131 In Hendricks, we explained that question whether an Act is civil punitive in nature is initially one of statutory construction. 521 S.,U. at 361 (citing Allen v. Illinois, 478 U. S. (1986)). 364, 368 A court must ascertain whether the legislature intended the statute to establish proceed ings. A court reject will the legislature’s manifest intent only where a party challenging the provides the clearest proof that the statutory scheme is so pur either pose or effect as to negate the State’s intention. 521 U. S., at 361 (citing United States v. Ward, 448 U. S. 242, 248-249 (1980)). We concluded that the confined individual in that case had failed to satisfy his burden with respect to the Kan sas Act. We noted several factors: The Act did not implicate retribution or prior deterrence; criminal convictions were used as evidence in the commitment proceedings, but were not a prerequisite to confinement; the required finding no of scienter to commit person; the Act was not intended to function as a deterrent; and although procedural safe guards were similar to those in the criminal they context, did not alter the character of the scheme. 521 U. at S., 361-365. We also examined the conditions of provided confinement by the Act. Id., at 363-364. The Court was aware that sexually predators violent in Kansas were to be held in a segregated unit within prison system. Id., at 368. We explained that the Act called for confinement in a secure facility because persons confined were dangerous to the community. Id., at 363. We noted, however, that condi- tions within the unit were essentially same as for other involuntarily persons committed in mental hospi- tals. Ibid. Moreover, confinement under the Act was not necessarily indefinite in duration. Id., at 364. Finally, we observed that in addition to protecting public, the Act provided also treatment for sexually predators. violent Id.,

262 conditions mental all not that acknowledged We 365-368.

at con- untreatable with individuals those For treatable. were con- federal no was there that explained we however, ditions, State the because confinement, civil to their bar stitutional indi- dangerous from public the protecting in interest an had conditions. untreatable as well treatable with viduals “non- was Act Kansas the that conclusion Our 366. at Id., both prerequisite remove[d] essential an thus punitive Id., claims.” post ex and jeopardy facto double Hendricks’ reaffirmed has Court this Hendricks, deciding Since of nature punitive or civil determining the that principle legislative and text its to reference begin with must Act an (1997). In 93 U. S. States, United v. history. Hudson challenge mon to jeopardy a double involved which Hudson, ex Court this debarment, occupational and penalties etary Act anof nature civil evaluating the of disapproved pressly individual. single on a has Act that effect to by reference ato by reference question evaluate must courts Instead, “ on to the relation in ‘considered variety factors legisla override required is proof clearest face’ is denominated an conclude and intent tive Kennedy (quoting Id., at effect. purpose in (1963)). 144, 169 U. S. Mendoza-Martinez, deter- Appeals’ Court turn we mind, in With chal- “as-applied” raise could respondent mination post ex jeopardy facto double lenge Respondent confinement. from release seek grounds his confinement conditions essentially claims incom- are conditions restrictive, too are Center designed system treatment, and with patible are claims Respondent’s confinement. indefinite result Hen- to the presented claims like respects many confine- concluded we dricks, where incapaci- goal to State’s explained largely were ment Nevertheless, at 362-368. S.,U. punish. tate, we do deny that some respondent’s allegations are serious. Nor do we express any view as to how his allega- tions would bear on a court determining in the first instance whether Washington’s confinement scheme is civil. Here, we evaluate respondent’s allegations presented as in a double jeopardy and post ex challenge under facto the assumption that the Act is civil.

We hold that respondent cannot obtain release through an “as-applied” challenge to the Washington Act on jeop- double ardy and post ex grounds. agree We facto with petitioner that an “as-applied” analysis prove would unworkable. Such an analysis would never conclusively resolve par- whether a ticular scheme is and would thereby prevent a final determination of the scheme’s validity under the Double Jeopardy and Ex Post Facto Clauses. Brief for Petitioner 30; Reply Brief for Petitioner 9. Unlike a fine, confinement is not a fixed event. petitioner As notes, it extends over time under conditions that are subject to change. par- The ticular features of confinement may affect how a confinement scheme is evaluated to determine whether it is civil rather than punitive, but it remains no less true that the query must be answered definitively. The civil nature of a confinement scheme cannot be altered based merely vagaries on in the implementation of the authorizing statute.

Respondent contends that the Ninth Circuit’s “as-applied” analysis comports with this precedents. Court’s points He out that this Court has considered conditions of confinement in evaluating validity of confinement schemes past. Brief Respondent 16,29 (citing 11— Hendricks, supra, at 363; Reno v. Flores, 507 U. S. 292, (1993); 301-302 United States v. Salerno, 481 U. S. (1987); 747-748 Allen v. Illi nois, supra, at 373-374; Scholl v. Martin, 467 U. S. 253, 269- (1984)). All of those cases, presented however, ques tion whether the Act at issue punitive. was Permitting respondent’s as-applied challenge would invite an end run around the Washington Supreme Court’s decision that that attack direct where circumstances civil

isAct Court. before not is decision issue takes judgment, concurring Thomas, Justice concerns the Court before the question view our with contends first He Act. ato challenge as-applied challenge “as-applied” true not is challenge respondent’s “ its ‘by the statute claim does respondent because rather but ... applied unconstitutional is terms’ own all.” at terms according being applied requires disagree. respectfully We Post, Rev. Wash. treatment,” individualized care “adequate with silent isAct but 2000), §71.09.080(2) (Supp. Code Center, required confinement respect complaints, respondent’s many source is the contends next Thomas Justice 259-260. at supra, see of view- instead civil, isAct the that assume incorrectly we face.’” ‘on civil or civil,’ . . . “‘otherwise as Act the ing the J.). However Thomas, by added (emphasis Post, turns case this analysis described, our isAct Washington that Court Supreme Washington the finding prior the that Hendricks decision Court’s this and civil, isAct have not could Petitioner civil. was identical nearly “facially” “otherwise” isAct Washington claimed decisions. prior on those relying without civil “incorrectly we argues Stevens Justice dissent, but civil,” post, “necessarily isAct assum[e]” assumption. very under Court reached has case civil, isAct recognized of Appeals Court The individual, “as-applied” an as claim respondent’s treated remanded then Appeals Court The Act. to challenge hearing evidentiary Court District case Con- of confinement. respondent’s determine case, characterization the dissent’s trary of the validity undermine not purport did of Appeals court scheme. confinement a Washington substanti- if allegations, respondent’s conclude did ated, would be sufficient to refute the Washington Supreme Court’s conclusion that the Act is civil, and to require release of all those confined under its authority. The Ninth Circuit addressed only respondent’s individual case, and we do not decide claims that are presented by the decision below. Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 379 We reject the Ninth Circuit’s “as- applied” analysis for double jeopardy and post ex claims facto as fundamentally flawed.

Ill Our decision today does not mean that respondent and oth- ers committed as sexually predators violent have no remedy for the alleged conditions and treatment regime at the Cen- ter. The text of the Washington Act states that those con- fined under its authority have right to adequate care and individualized treatment. Wash. Rev. Code §71.09.080(2) (Supp. 2000);Brief for Petitioner 14. As petitioner acknowl- edges, if the Center fails to fulfill its statutory duty, those confined may have a state law cause of action. Tr. of Oral Arg. 6, 10-11, 52. It is for the Washington courts to deter- mine whether the Center is operating in accordance with state law provide a remedy.

State courts, in addition to federal courts, remain compe- tent adjudicate and remedy challenges to civil confinement schemes arising under the Federal Constitution. As noted above, the Washington Supreme Court has already held Washington Act is civil in nature, designed to incapaci- tate and to treat. In re Young, 122 Wash. 2d, at 18-25, 857 P. 2d, at 996-1000. Accordingly, process due requires that the conditions and duration of confinement under the Act bear some reasonable relation to the purpose for per- which sons are committed. Foucha v. Louisiana, 504 U. S. 71, 79 (1992); Youngherg v. Romeo, 457 U. S. 307, (1982); 324 Jack- son v. Indiana, 406 U. S. 715.,738 Finally, we § note that a 1983 against action the Center is pending in the Western District of Washington. See supra,

266 re- injunction an under operates Center

at 257. training hir- and for plan a implement adopt and it to quires relations improve to therapists; offender competent ing sex. a implement to providers; treatment and residents between re- containing elements residents for program treatment develop indi- to standards; professional prevailing quired psychologist a provide to and programs; treatment vidual sex of treatment diagnosis in the expert psychiatrist Mas- Special A App. 67. staff. the supervise to offenders with compliance into Center bringing the in assisted has ter the opinion published recent most injunction. the the Center progress some noted District the matter, Turay v. injunction. of requirements meeting the in 1154-1155. 2d, at Supp. F. Seling, 108 civil how consider to occasion no us gives case This constitu- other relates scheme of a confinement nature ex- consider toor process, due as such challenges, tional con- of conditions to actual may look court which tent determine of implementation finement civil is scheme a confinement instance first condi- concurring, contends Scalia, nature. Justice determining whether irrelevant are confinement tions interpreted have courts state unless is contrast, Justice By Ste- conditions. those permitting any time confinement conditions consider would vens statute.” theof effects knowledge of gain “full order Post, at been has scheme confinement Whether See, challenges. constitutional some question threshold (double jeop- (1997) 346 S.U. Hendricks, v. e.g., Kansas S. U. Salerno, v. States United facto); post ex ardy and (1986) S. U. Illinois, (due Allen (1987) process); self-incrimination). against privilege (Fifth Amendment relevance about suggest may cases these Whatever approach endorse they do confinement, “ef- into inquiry render would which dissent, fects of the post, statute,” at 277, completely open ended. one case, the Court refused to consider alleged confinement conditions because parties had entered into a consent decree to improve conditions. Flores, 507 U. S., at 301. presumed that conditions were in compliancewith requirements of the consent decree. Ibid. In another case, the Court found that anecdotal case histories and a sta- tistical study were insufficient to render a regulatory con- finement scheme punitive. Martin, 467 U. S., at 272. In such cases, we have decided whether a confinement scheme punitive notwithstanding the inherent difficulty in ascer- taining current conditions and predicting future events.

We have not squarely addressed the relevance of condi- tions of confinement to a first instance determination, and question need not be resolved here. An Act, found to be civil, cannot be deemed “as applied” to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses provide cause for release. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore reversed, and the case is re- manded for further proceedings consistent with this opinion.

It is so ordered. Justice Scalia, with whom Justice Souter joins, concurring. agree

I with the Court’s holding that a statute, “found be [in nature], cannot be punitive” deemed or criminal “as applied” for purposes of the Ex Post Facto and Double Jeopardy Clauses. Ante page. The Court accurately observes that this holding gives us “no occasion to consider ... extent to which a court may look to actual of confinement and implementation of the statute to deter- mine in the first instance whether a confinement scheme is civil in nature.” Ante, at 266. I write separately to dissoci- ate myself any from implication that this point reserved may be open question. I do regard it as such since, three

268 challenge jeopardy double similar a rejected we ago,

years the to applied” “as implementation statute’s (based upon the determined been yet had the statute where petitioners), deter- making that were we where nature, and in be to United v. Hudson See instance.” first “in mination most with consistent (1997). beTo 93S.U. States, 522 did one, (which, unlike case that holding of narrow sub- of confinement), any consideration of imposition involve in- “first making a of course in implementation sequent im- subsequent all to extend cannot determination stance” of implementation limited be must but plementation, fixed a “not are that impositions other of confinement, peculiar abe however, would That, 263. ante, at event,” imposition as such events” “fixed even since limitation, aspects— penal acquire implementation, their can, in a fine of size punitive allegedly by the Hudson in exemplified vio- “good-faith” for availability reduction by the fines, and language Moreover, 97-98,104. atS.,U. 522 see lations, pecu- such for room no leave reasoning Hudson limitation. liar contended petitioners case, be could them applied been had statute nature features aforementioned considering the assessed sup- found contention, which rejected flatlyWe fines. 490 Halper, States in United decision prior our port erroneously made had said, Halper, we 435 S.U. jurisprudence, prior our from departure” “significant sanctions actual of the character ‘asses[s] the “to deciding [v. Kennedy than, rather 447, S.,U. 490 imposed,’ evaluat- demanded, (1963),] 144 S.U. Mendoza-Martinez, provided it determine face’ ‘statute ing 169.” [id.], sanction, criminal a amounted what “ con- be ‘must said, factors, we Kennedy S., at U. ” atS.,U. face,’ on its relation sidered S.U. Mendoza-Martinez, Kennedy v. from quoting petitioners’ fact “[t]he held (1963). We 144, 169 'good faith’ was considered in determining the amount of the penalty to be imposed in [a this case circumstance that would normally indicate the assessment punitive] is irrelevant, as we only look to 'the statute on its face’ to determine whether a penalty is criminal in nature.” Hudson, supra, at 104,quoting Kennedy, supra, at 169. repeated, We to be sure, the principle that the statutory scheme would be crimi- “ nal if it was sufficiently punitive 'either in purpose or ef- fect,’” Hudson, supra, at 99 (emphasis added), quoting United States v. Ward, 448 U. S. 242, 248-249 (1980),but it was clear from opinion that this referred to effects appar- ent upon the face of the statute.

The short of the matter is that, for Double Jeopardy and Ex Post Facto Clause purposes, question of pen criminal alty vel non depends upon the intent of the legislature;* and “ harsh executive implementation cannot transform] what clearly was intended as a civil remedy into a pen criminal alty,” Rex Trailer Co. v. United States, 350 U. S. 148, 154 (1956),any more than compassionate executive implementa tion can transform a criminal penalty into a civil remedy. This is not to say that there is no relief system from a administers a facially civil statute in a fashion that would render it criminal. The remedy, however, is not to invali date legislature’s handiwork under the Double Jeopardy Clause, but to eliminate whatever excess in administration contradicts statute’s civil character. When, as here, state statute is at issue, the remedy for implementation does not comport with the civil nature of the statute is resort to the traditional state proceedings that challenge unlawful executive action; if those proceedings fail, and the state

* Hudson v. United States, 522 U. S. 98 (1997), addressed only the Double Jeopardy Clause. Since, however, the very wording of the Ex Post Facto Clause —“No State shall... pass any ... ex post Law,” facto U. S. Const., I, Art. § 10, el. 1 (emphases added) no —leaves doubt that it is a prohibition upon legislative action, the irrelevance of subsequent executive implemen- tation to that constitutional question is, if anything, even clearer. permit statute state interpret authoritatively

courts only then then punitive, indeed are impositions ting face on pronounce courts federal can courts federal protects approach Such criminal. be into inquiry intrusive of sort becoming enmeshed from left are best institutions state local itAnd instance. first least judiciary, own State’s basis statutes state invalidation federal avoids themselves, courts state implementation executive Only vires. ultra be find would opportunity, given sound our with accord inisme, it seems approach, this interpreter initial be reluctance traditional Co., Pullman Tex. Comm’n Railroad See law. state 500-501 S.U. Court. opinion join I clarification, With the judgment. concurring Thomas, Justice otherwise “an whether decide certiorari granted We simply nature” civil itsof divested be can statute civil valid implement failure agency’s administrative of an because Cert, (emphasis i Pet. terms. its according to statute In- question. this answer declines added). majority civil—rather is at issue statute assumes it stead, Young v. face.” its “on civil civil,” . . . “otherwise than merely holds it 1997). then And (CA9 3dF. Weston, 122 opposite be deemed cannot civil is a statute sin- ato applied it—as puts majority as “punitive,” civil— conclusion, explaining Ante, at gle individual. on judgment reserves expressly majority assessment a court’s affect should implementation manner 263,267. Ante, at instance.” “first civil statute a first, view, my express separately I write nature civil itsof divested be cannot face its is which implemented, is it which manner simply because challenge between distinction second, “first instance” and a subsequent challenge one without a difference. Before it is proceeding, important clarify issue in this case. The majority adopts the Ninth Circuit’s nomen clature and refers to respondent’s claim as an “as-applied” g., challenge, see, e. ante, at 263, but label is at best misleading. Typically “as-applied” is a challenge claim that a “by its own terms, infringed] constitutional statute, freedoms in the circumstances of [a] particular case.” United States v. Christian Echoes Nat. Ministry, Inc., U. S. 561, 565 (1972) curiam) (per (emphasis added). In con trast, respondent’s claim is not that Washington’s Commu nity Protection Act of 1990 (Washington Act or Act), Wash. Rev. Code §71.09.010 et seq. (1992), “by own terms” is unconstitutional as applied to him,1 but rather that the stat ute is not being applied to its according terms at all.2 Re spondent essentially contends that the actual conditions of confinement, notwithstanding text of the statute, are pu nitive and incompatible with the Act’s treatment purpose. See ante, at 259-260.

1 Respondent has made claim that the terms of the Washington Act are criminal so that his confinement under the Act thus violates the Dou ble Jeopardy and Ex Post Facto Clauses, but this claim was rejected below —first by the Washington Supreme Court, In re Young, Wash. 2d 1, 18-23, 857 P. 2d 996-999 (1993), and then by the Ninth Circuit, Young v. Weston, 192 F. 3d 870, (1999) —and has not been presented to this Court. 2Disagreeing with this characterization, the majority contends that the statute is silent with respect to conditions of confinement. ante, See at 264. Even if the majority were correct —which it is not, see Wash. Rev. § Code 71.09.070 (requiring annual examinations of each person’s mental conditions); §71.09.080(2) 2000) (Supp. (requiring “adequate care and indi vidualized treatment”); see also In re Young, supra, 18-23, at 2d, 857 P. at 996-999 (discussing provisions similar on conditions of confinement in 1990 version of Act) Washington question —the on which we granted cer-

tiorari expressly assumes that the statute “mandate[s]” the “conditions of confinement” that petitioner seeks. See Pet. for Cert. i.

272 aof implementation to the one, as challenge, such A majority the as “unworkable,” only is not statute

facially civil in decision by our prohibited also but 263, ante, at it, puts Hudson, (1997). In 93S.U. States, 522 United v. Hudson or is a determining whether that, when held we face.” its on “statute the examine must a court criminal, S.U. 372 Mendoza-Martinez, Kennedy v. quoting 101, Id., at omitted). In so marks (internal quotation (1963) 169 144, in used approach the disavowed expressly holding, we eval (1989),which 435, 448 S.U. 490 Halper, v. States United at S.,U. 522 imposed.” sanctions “actual the uated marks quotation (internal 447 at supra, Halper, quoting with flatly inconsistent is claim omitted). Respondent’s be look tous asks respondent because Hudson holding instead examine to and Washington face yond condi actual is, him, imposed sanctions actual the Ninth and argues, Respondent confinement. tions particular to the limited is reach Hudson's held, that Circuit oc and penalties monetary case— involved sanctions here, where apply does disbarment —and cupational in no contains however, Hudson, confinement. is sanction specific to limited holding is its whatsoever dication in Hud explained we contrary, as the To at issue. sanctions any of status dispositive elevate may court son, a sanc determining whether may consider it factors nondispos- of these One S., U. criminal.3 is tion Kennedy listed factors seven referred Hudson “(1) guideposts”: (1963), “useful S.U. Mendoza-Martinez, (2) restraint; disability affirmative an involves sanction whether it (3) whether punishment; aas regarded been historically it has whether will operation (4) scienter; whether finding aon only play into comes deterrence; punishment aims traditional —retribution promote (6) crime; already is applies it which behavior (5) whether assign connected rationally be may it which purpose alternative alterna in relation excessive appears it (7) whether it; and able Mendoza-Martinez, 99-100, quoting S., at U. assigned.” purpose tive omitted). alteration marks (internal quotation 168-169 supra, itive factors is confinement. Id., at 99 (stating that one of the factors “[w]hether is the sanction involves an affirmative disability or restraint,” quoting Mendoza-Martinez, supra, (internal at 168 quotation omitted)). marks Yet elevating confinement to dispositive status is exactly what respondent asks us to do when he advances his distinction between con- finement and other sanctions. Because rejects Hudson such argument, an respondent’s claim fails.

An implementation-based challenge to a facially civil stat- ute would be as inappropriate in reviewing the statute in the “first instance,” ante, at 263, 267 (majority opinion), as it is here. In the first instance, as here, there is no place for such a challenge in the governing jurisprudence. Hudson, which requires courts to look at the face of the precludes statute, implementation-based challenges at any Moreover, time. the implementation-based claim would be as “unworkable,” ante, at 263 (majority opinion), in the first instance as in later challenges. Because the actual conditions of confinement may change over time may vary from facility to facility, implementation-based challenge, if successful, would serve to invalidate a statute that may be implemented without any constitutional infirmities at a future time or in a separate facility. To use majority’s words, the validity of a statute should not be “based merely on va- garies in the implementation of the authorizing statute.” Ibid. yet And the majority suggests that may courts be able

consider conditions of confinement in determining whether a punitive. Ante, at 263, 266. To the extent that the conditions are actually provided for on the face of statute, I of course agree. Cf. (direct- Hudson, supra, at 101 “ ing courts to look at ‘the statute ”). on its face’ However, to the extent that the conditions result from the fact that the statute is not being applied according to its terms, the conditions are not the effect of the statute, but rather

274 on based suit A implementation.4 improper of its

effect prevail. cannot conditions these ^

‡ -i* for puni- face its on not provide does Washington The conditions actual the and confinement, of tive our to concern no are of is implemented the which under Court. the of the judgment concur therefore I inquiry. dissenting. Stevens, Justice law, the violating for imprisoned bemay predator A sexual institu- committed bemay he ill, mentally is if he

and, authoriz- a specific Whether cured. ishe until tion viewed is properly a person such of detention the ing constitutional federal of context the “civil” “criminal” See difficulty. of considerable a question often is issues aby (reversing, (1997) Hendricks, 521 U. 346 S. Kansas v. invali- Supreme Kansas the vote, decision 5-to-4 no is there analysis, majority’s 4 the that, “under argues dissent The (opinion at construction,” post, statutory that beyond inquiry correct is dissent the whether me it unclear is X). Although Stevens, majority interpret so courts federal state that score, hope I venturing preclude not does opinion majority if even For opinion. Hudson, 522 See does. certainly statute, Hudson face beyond ” “ face’ ‘on a statute examine must courts (holding S., at U. “ 272. at ”); supra, imposed’ sanctions ‘actual not consider may 263, 266 261-262, ante, at contrary, suggestion any dispel To Kan- note I dissenting), X, (Stevens, at 276 post, opinion); (majority support provide not (1997), does Hendricks, U. S. sas parties Hendricks, “none challenges. implementation-based stat- commitment civil ... under institutionalized people argue[d] anof viability Id., at 363. conditions.” subject are ute signifi- And issue. simply was challenge implementation-based into inquiries Hudson Hendricks, held we after months six cantly, Hud- statute. of the “face” restricted are a statute opin- (or previous any Hendricks extent To son, supra, answering open door left opinion)) ante, at 266 (majority ion, door. closed Hudson question, implementation dating Kansas’ Sexually Violent Act); Predator Allen v. Illi nois, 478 (1986) U. S. 364 (upholding, by a 5-to-4vote, Illinois’ Sexually Dangerous Act); Persons In re Young, 122Wash. 2d 1, 857 P. (1993)(en 2d 989 banc) (upholding, by a 5-to-4 vote, provisions of Washington’s Community Protection Act of 1990dealing with sexually predators). violent It is settled, however, that question whether a state statute is civil or criminal in nature for purposes of com- plying with the demands of the Federal Constitution is a question of federal law. If a detainee comes forward with “ 'the proof’ clearest that 'the statutory [is] scheme puni- so tive either in purpose or as to negate [the effect 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, (1980)) 248-249 (emphasis added). See also Hudson v. United States, 522 U. S. 93, (1997). 100, 105 Accordingly, we have consistently looked to the conditions of confinement as evidence of both the legislative purpose be- hind 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 S.,U. at 369, 373-374. As we have acknowledged in those cases, question whether a is punitive in fact cannot always be answered solely by refer- ence to the text of the statute.

The majority in this case, however, incorrectly assumes that the Act at issue is necessarily civil. The issue ma- jority 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 particular prisoner. However, respondent Young’s petition did present not issue. Rather, consistent with our case law, Young sought to introduce evidence of the conditions of confinement as evi- dence of purpose and effect of the Washington statute. See Amended Pet. for Writ of Corpus Habeas 6 and Supp. Brief on Remand 2, 6, 10-11, in No. (WD C94-480C Wash.), Record, Doc. Nos. 57, 155. As a result, Young in no 93 S.U. States, United of Hudson afoul runs

way resolving acknowledges Hudson read, Properly into take can nature in criminal is civil an whether effect.1 a punitive has scheme statutory whether account taken an approach is rejects Hudson What 99: Id., at question threshold that bypasses respondent —one imposed actually the sanction on focus a dispositive favor 101-102. Id., at individual.2 the specific or punitive is civil sure, the question beTo Ante, construction.” statutory one initially “is nature majority’s However, under opinion). (majority at con- statutory beyond inquiry no is there analysis, argues majority essence, Ante, struction. de- answered be must query constitutional because con- event,” “fixed anot confinement because finitively all, except considered be should confinement ditions matter, aas when, practical statute, ato challenge first rule that, under concludes Scalia concurrence, Justice In his never look may (1997), courts 93 States, U. S. v. United Hudson to de statute implementation confinement actual na in is civil scheme a confinement whether instance first in termine judg in concurring Thomas, Justice ante, 267-268. See ture. implementation-based further, precluding even Hudson take ment, would out ” set reasons However, for the Ante, time. any “at challenges that note also I Hudson. misread concurrences both that above, I believe confine involve do that In cases confinement. involve did Hudson must scheme statutory that principle relied has ment, Court “ purpose ‘either punitive sufficiently it was if criminal deemed be (1997); 361, 367-369 346, S.U. Hendricks, v. Kansas See effect.”’ S.U. Illinois, v. (1984); Allen 253, 269-271 Martin, 467 U. S. Schall 369, 373-374 simply isit it clear made has Court dissent, the my response In stat merely proves heif prevail may respondent holding question him. applied been it has insofar is punitive ute its prove can he if prevail may he remains therefore provisions under confined everyone application Ninth holding narrow rejected has sum, the open. claim broadest of the sufficiency not addressed has Circuit, but advanced. has petitioner

the evidence of such conditions is most likely not to consti- tute the requisite proof.” “clearest This seems to quite me wrong. If conditions of confinement are such that a detainee has punished been 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 concern- ing both the absence of treatment for his alleged mental ill- ness and the starkly punitive character of the conditions of his confinement. proved, If those allegations establish not just that those pursuant detained to the statute are treated like those imprisoned for violations of Washington’s criminal laws, but that, many respects, they receive significantly worse treatment.4 If those allegations are correct, the stat- ute in question should be characterized as a criminal law for federal constitutional purposes. I agree therefore with the Court of Appeals’ conclusion respondent should be given the opportunity to come forward with the proof” “clearest that his allegations are true.

Accordingly, I respectfully dissent. 3In this ease, those detained pursuant to Washington’s statute have sought an improvement in conditions for almost seven years. Their suc cess in the courts, however, has had little practical impact 44Under such conditions, Young has now served longer in prison follow ing the completion of his sentence than he did on the sentence itself.

Case Details

Case Name: Seling v. Young

Court Name: Supreme Court of the United States

Date Published: Jan 17, 2001

Citation: 531 U.S. 250

Docket Number: 99-1185

Court Abbreviation: SCOTUS