SUPREME COURT OF THE UNITED STATES

                                    --------
                            Nos. 95-1649 AND 95-9075
                                    --------
                               KANSAS, PETITIONER
     95-1649                           v.
                                       __
     LEROY HENDRICKS

     LEROY HENDRICKS, PETITIONER
     95-9075                           v.
                                       __
                                     KANSAS

                   ON WRITS OF CERTIORARI TO THE SUPREME COURT
                                    OF KANSAS

                                 [June 23, 1997]

  Justice BREYER,  with whom  Justices STEVENS  and SOUTER  join, and  with whom
Justice GINSBURG joins as to Parts II and III, dissenting.

  I agree  with  the majority  that  the  Kansas Act's  "definition  of  `mental
abnormality'"  satisfies  the  "substantive"  requirements of  the  Due  Process
Clause.   Ante, at 8.   Kansas, however,  concedes that Hendricks'  condition is
          ____
treatable; yet the Act did not  provide Hendricks (or others like him)  with any
treatment until after his release date from prison and only inadequate treatment
thereafter.  These, and certain other,  special features of the Act convince  me
that  it was  not simply an  effort to  commit Hendricks civilly,  but rather an
effort  to inflict  further  punishment  upon  him. The  Ex  Post  Facto  Clause
                                                         _______________
therefore prohibits the Act's application to Hendricks, who committed his crimes
prior to its enactment. 
                                        I

  I begin  with the  area of  agreement.   This Court  has held  that the  civil
commitment of a "mentally ill" and

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                                      __

"dangerous"  person  does  not  automatically violate  the  Due  Process  Clause
provided  that  the commitment  takes place  pursuant  to proper  procedures and
evidentiary standards.    See Foucha  v.  Louisiana, 504  U. S.  71, 80  (1992);
                              ______      __________
Addington v.  Texas, 441 U. S. 418,  426-427 (1979).  The  Kansas Supreme Court,
_________     ______
however, held  that the Due  Process Clause  forbids application of  the Act  to
Hendricks for "substantive"  reasons, i.e.,  irrespective of  the procedures  or
                                      ____
evidentiary  standards used.   The court reasoned that  Kansas had not satisfied
the "mentally  ill" requirement of the Due  Process Clause because Hendricks was
not "mentally ill."   In  re Hendricks, 259  Kan. 246, 260-261,  912 P. 2d  129,
                      ________________
137-138 (1996).  Moreover, Kansas had  not satisfied what the court believed was
an  additional "substantive due  process" requirement,  namely the  provision of
treatment.  Id., at 257-258, 912 P. 2d, at 136.   I shall consider each of these
            ___
matters briefly.
                                        A
  In my view,  the Due Process Clause permits  Kansas to classify Hendricks as a
mentally  ill and  dangerous person  for  civil commitment  purposes.   Allen v.
                                                                        _____
Illinois,  478 U. S. 364,  370-371, 373-375 (1986).   I agree  with the majority
_________
that the Constitution  gives States a  degree of leeway in  making this kind  of
determination.  Ante,  at 11-12; Foucha, supra, at 87  (O'CONNOR, J., concurring
                ____             ______  _____
in part and concurring in judgment); Jones v. United States, 463 U. S. 354, 365,
                                     _____    ______________
n. 13 (1983).  But, because I do not subscribe  to all of its reasoning, I shall
set forth  three sets of  circumstances that, taken  together, convince me  that
Kansas has  acted within  the limits that  the Due Process  Clause substantively
sets.
  First, the psychiatric  profession itself classifies the kind of  problem from
which   Hendricks  suffers  as  a  serious  mental  disorder.    E.g.,  American
                                                                 ____
Psychiatric Assn., Diagnostic and Statistical Manual of Mental

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                               KANSAS v. HENDRICKS                             3
                                      __

Disorders 524-525, 527-528 (4th  ed. 1994) (describing range of  paraphilias and
discussing  how stress aggravates pedophilic behavior); Abel & Rouleau, Male Sex
Offenders,  in Handbook  of Outpatient  Treatment  of Adults  271 (M.  Thase, B.
Edelstein, &  M. Hersen eds.  1990).  I  concede that professionals  also debate
whether  or not  this disorder  should be  called  a mental  "illness."   See R.
Slovenko, Psychiatry and Criminal  Culpability 57 (1995) (citing  testimony that
paraphilias  are not mental illnesses);  Schopp & Sturgis,  Sexual Predators and
Legal Mental Illness for Civil Commitment, 13 Behav. Sci. & The Law 437, 451-452
(1995) (same).   Compare Brief  for American Psychiatric  Association as  Amicus
                                                                          ______
Curiae  26 (mental illness requirement  not satisfied) with  Brief for Menninger
______
Clinic  et al. as Amici  Curiae 22-25 (requirement is  satisfied).  But the very
                  _____________
presence  and vigor  of this debate  is important.   The  Constitution permits a
State to follow one reasonable professional view, while rejecting  another.  See
Addington  v.  Texas, 441  U. S.  418,  431  (1979).   The  psychiatric  debate,
_________      ______
therefore, helps to inform the law by setting the bounds of what  is reasonable,
but it  cannot here decide just  how States must  write their laws  within those
bounds.  See Jones, supra, at 365, n. 13.
             _____  _____
  Second, Hendricks' abnormality does  not consist  simply of a  long course  of
antisocial  behavior, but  rather it  includes a  specific, serious,  and highly
unusual inability to  control his  actions.  (For  example, Hendricks  testified
that, when  he gets  "stressed  out," he  cannot "control  the  urge" to  molest
children, see ante, at  7.)  The law  traditionally has considered this  kind of
              ____
abnormality akin to insanity for purposes of confinement.  See, e. g., Minnesota
                                                                _____  _________
ex  rel. Pearson  v. Probate  Court of  Ramsey Cty.,  309 U. S. 270,  274 (1940)
________________     _______________________________
(upholding against a due process challenge the civil confinement of a  dangerous
person where the danger flowed  from an "`utter lack of  power to control .  . .
sexual impulses'") (quoting State ex
                            ________

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                                      __

rel. Pearson v. Probate Court of Ramsey Cty, 205 Minn. 545, 555, 287 N.  W. 297,
____________    ____________________________
302 (1939));  1788 N. Y. Laws, ch.  31 (permitting confinement of  those who are
"furiously  mad"); In re Oakes, 8 Law  Rep. 122, 125 (Mass. 1845) (Shaw, C. J.);
                   ___________
A.  Deutsch, The  Mentally Ill  in America  419-420  (1949) (tracing  history of
commitment of furiously mad  people in 18th and 19th centuries); Dershowitz, The
Origins  of  Preventative  Confinement in  Anglo-American  Law  -  Part II:  The
American  Experience, 43 U. Cin. L.  Rev. 781 (1974).  Indeed,  the notion of an
"irresistible impulse" often has helped to shape criminal law's insanity defense
and  to inform  the related  recommendations of  legal experts  as they  seek to
translate the insights of mental health professionals into workable legal rules.
See also  American Law Institute, Model  Penal Code S4.01 (insanity  defense, in
part, rests on inability "to conform . . . conduct to the requirements of law");
A.  Goldstein,  The  Insanity  Defense 67-79  (1967)  (describing  "irresistible
impulse" test).
  Third, Hendricks' mental abnormality also makes him dangerous.  Hendricks "has
been convicted of .  . . a sexually violent  offense," and a jury found  that he
"suffers from a mental abnormality . . . which makes" him "likely to  engage" in
similar "acts  of sexual violence" in  the future.  Kan.  Stat. Ann. SS59-29a02,
59-29a03 (1994).   The  evidence at trial  favored the State.   Dr.  Befort, for
example, explained  why Hendricks was  likely to commit  further acts of  sexual
violence if  released.  See, e.g.,  App. 248-254.  And  Hendricks' own testimony
                             _____
about what happens when he gets "stressed out" confirmed Dr. Befort's diagnosis.
  Because (1)  many mental  health professionals  consider pedophilia  a serious
mental  disorder; and (2) Hendricks suffers  from a classic case of irresistible
impulse, namely he  is so afflicted with pedophilia that  he cannot "control the
urge" to  molest children; and (3)  his pedophilia presents a  serious danger to
those children; I believe

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                               KANSAS v. HENDRICKS                             5
                                      __

that Kansas can  classify Hendricks as  "mentally ill"  and "dangerous" as  this
Court used those terms in Foucha.
                          ______
  The  Kansas Supreme  Court's contrary  conclusion rested  primarily upon  that
court's view  that Hendricks would not qualify for civil commitment under Kansas
own state civil  commitment statute.   The issue before  us, however, is  one of
constitutional  interpretation.   The  Constitution does  not require  Kansas to
write  all of its  civil commitment rules  in a single  statute or forbid  it to
write  two  separate  statutes  each  covering  somewhat  different  classes  of
committable individuals.  Moreover, Hendricks apparently falls outside the scope
of  the Kansas  general civil  commitment statute  because that  statute permits
confinement only  of those  who "lac[k]  capacity to  make an  informed decision
concerning treatment."   Kan. Stat. Ann. S59-2902(h)  (1994).  The statute  does
not  tell us  why it  imposes this  requirement.  Capacity  to make  an informed
decision about treatment  is not  always or obviously  incompatible with  severe
mental illness.   Neither  Hendricks nor his  amici point  to a uniform  body of
                                              _____
professional opinion that says as much,  and we have not found any.   See, e.g.,
                                                                           _____
American  Psychiatric  Assn.,  Guidelines  for Legislation  on  the  Psychiatric
Hospitalization  of Adults, 140  Am. J. Psychiatry 672,  673 (1983); Stromberg &
Stone, A Model  State Law on Civil  Commitment of the Mentally Ill,  20 Harv. J.
Legis. 275, 301-302 (1983);  DeLand & Borenstein, Medicine Court,  II, Rivers in
                                                                       ______
Practice, 147 Am. J. Psychiatry 38 (1990).  Consequently, the  boundaries of the
federal Constitution and those  of Kansas' general civil commitment  statute are
not congruent.
                                        B
  The Kansas  Supreme Court  also held that the  Due Process  Clause requires  a
State to provide treatment to those whom it  civilly confines (as "mentally ill"
and 

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                                      __

"dangerous").  It found  that Kansas did not provide Hendricks  with significant
treatment.   And  it  concluded that  Hendricks'  confinement violated  the  Due
Process Clause for this reason as well.  
  This  case does  not require  us to  consider whether  the Due  Process Clause
always  requires treatment  -  whether,  for  example,  it  would  forbid  civil
________
confinement of an untreatable mentally ill, dangerous person.   To the contrary,
                  ____________
Kansas argues  that  pedophilia is  an "abnormality"  or "illness"  that can  be
treated.   See Tr. of Oral Arg. 12 (Kansas  Attorney General, in response to the
question  "you're claiming  that there  is some  treatability . . . ?" answering
"[a]bsolutely");  Brief for  Petitioner  42-47.   Two  groups of  mental  health
professionals agree.   Brief  for the  Association for  the Treatment  of Sexual
Abusers as Amicus Curiae 11-12 (stating that "sex offenders can  be treated" and
           _____________
that "increasing evidence" shows that "state-of-the-art treatment programs . . .
significantly  reduce recidivism"); Brief for the Menninger Foundation et al. as
Amici Curiae 28.  Indeed,  no one argues the contrary.  Hence the legal question
____________
before us is  whether the  Clause forbids Hendricks'  confinement unless  Kansas
provides him with treatment that it concedes is available.
                            _____________________________
  Nor does anyone argue that Kansas somehow could have  violated the Due Process
Clause's treatment concerns had it provided Hendricks with the treatment that is
         __________
potentially available  (and I do not  see how any such  argument could succeed).
Rather, the basic  substantive due  process treatment question  is whether  that
Clause  requires Kansas  to provide  treatment that  it concedes  is potentially
available to a person whom it  concedes is treatable.  This same question  is at
the  heart of  my  discussion of  whether  Hendricks' confinement  violates  the
Constitution's Ex Post  Facto Clause.  See infra, at 11-16, 17, 19-21.  For that
               ______________              _____
reason, I shall not consider the substantive due process

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                               KANSAS v. HENDRICKS                             7
                                      __

treatment question separately,  but instead  shall simply  turn to  the Ex  Post
                                                                        ________
Facto Clause  discussion.  As Justice KENNEDY points out,  ante, at 1-3, some of
_____                                                      ____
the matters there discussed may later prove relevant to substantive due  process
analysis.
                                       II
  Kansas' 1994 Act violates the Federal Constitution's prohibition of "any . . .
ex post facto  Law" if it "inflicts" upon Hendricks  "a greater punishment" than
_____________
did  the law "annexed  to" his  "crime[s]" when  he "committed" those  crimes in
1984.  Calder v.  Bull, 3 Dall. 386,  390 (1798) (opinion  of Chase, J.);  U. S.
       ______     _____
Const.,  Art.  I,  S10.   The  majority  agrees that  the  Clause  "`forbids the
application  of any  new  punitive measure  to  a crime  already  consummated.'"
                     _____________________
California Dept. of Corrections v.  Morales, 514 U. S. ___ (1995) (slip  op., at
_______________________________     ________
5) (citation omitted; emphasis added).  Ante, at 23-24.  But it finds the Act is
                                        ____
not "punitive."    With respect  to that  basic  question, I  disagree with  the
majority.
  Certain  resemblances  between the  Act's  "civil commitment"  and traditional
criminal punishments are obvious.   Like criminal imprisonment, the  Act's civil
commitment  amounts to  "secure"  confinement,  Kan.  Stat. Ann.  S59-  29a07(a)
(1994), and "incarceration against  one's will."  In  re Gault, 387 U. S. 1,  50
                                                  ______________
(1967).  See Testimony of  Terry Davis, SRS Director of Quality  Assurance (App.
52-54, 78-81)  (confinement takes  place  in the  psychiatric wing  of a  prison
hospital  where those whom the  Act confines and  ordinary prisoners are treated
alike).  Cf.  Browning-Ferris Industries of Vt.,  Inc. v. Kelco  Disposal, Inc.,
              ________________________________________    ______________________
492 U. S. 257, 298  (1989) (O'CONNOR, J., concurring  in part and dissenting  in
part).   In addition, a basic objective  of the Act is incapacitation, which, as
Blackstone said in describing an objective of criminal law, is to "depriv[e] the
party  injuring of the power  to do future mischief."   4 W. Blackstone, Commen-
taries

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                                      __

*11-*12 (incapacitation  is one important  purpose of criminal  punishment); see
also Foucha, 504 U. S., at 99 (KENNEDY, J., dissenting) ("Incapacitation for the
     _______
protection  of  society is  not an  unusual  ground for  incarceration"); United
                                                                          ______
States v. Brown, 381 U. S. 437, 458 (1965) (punishment's "purposes: retributive,
______    ______
rehabilitative,  deterrent -  and  preventative.   One  of the  reasons  society
imprisons those convicted of crimes is to keep them from inflicting future harm,
but  that does not make imprisonment any the less punishment"); 1 W. LaFave & A.
Scott, Substantive Criminal Law S1.5, p. 32 (1986); 18 U. S. C. S3553(a); United
States Sentencing Guidelines, Guidelines Manual, ch. 1, pt. A (Nov. 1995).
  Moreover,  the Act,  like  criminal  punishment, imposes  its  confinement (or
sanction)  only upon  an  individual who  has  previously committed  a  criminal
offense.  Kan. Stat. Ann. SS59-29a02(a), 59-29a03(a)  (1994).  Cf. Department of
                                                                   _____________
Revenue of Mont. v. Kurth Ranch,  511 U. S. 767, 781 (1994) (fact that a  tax on
________________    ____________
marijuana was  "conditioned on the  commission of  a crime" is  "`significant of
[its] penal and  prohibitory intent'") (citation omitted); Lipke v. Lederer, 259
                                                           _____    ________
U. S. 557, 561-562 (1922).  And the Act imposes that confinement through the use
of  persons   (county  prosecutors),  procedural  guarantees   (trial  by  jury,
assistance  of  counsel,  psychiatric  evaluations), and  standards  ("beyond  a
reasonable doubt") traditionally associated  with the criminal law.   Kan. Stat.
Ann. SS59-29a06, 59-29a07 (1994).
  These obvious resemblances by themselves, however, are not  legally sufficient
to transform what  the Act calls "civil commitment" into  a criminal punishment.
Civil  commitment  of dangerous,  mentally ill  individuals  by its  very nature
involves  confinement  and  incapacitation.    Yet "civil  commitment,"  from  a
constitutional  perspective, nonetheless remains civil.   Allen v. Illinois, 478
                                                          _____    _________
U. S. 364, 369-370 (1986).  Nor does the fact that criminal

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                               KANSAS v. HENDRICKS                             9
                                      __

behavior triggers the  Act make the critical  difference.  The Act's  insistence
upon  a  prior crime,  by  screening  out those  whose  past  behavior does  not
concretely demonstrate the  existence of  a mental problem  or potential  future
danger, may  serve an important noncriminal evidentiary purpose.  Neither is the
presence of  criminal law-type procedures  determinative.  Those  procedures can
serve an important purpose that in  this context one might consider noncriminal,
namely  helping  to prevent  judgmental mistakes  that  would wrongly  deprive a
person of important liberty.  Id., at 371-372.
                              ____
  If these obvious  similarities cannot by themselves prove that  Kansas' "civil
commitment" statute is criminal, neither can  the word "civil" written into  the
statute, S59-29a01, by itself prove the contrary.  This Court has said that only
the "clearest proof" could establish that a  law the legislature called "civil,"
was, in reality a  "punitive" measure.   United States v.  Ward, 448 U. S.  242,
                                         ______________    _____
248-249  (1980).  But the Court  has also reiterated that a  "civil label is not
always dispositive," Allen v. Illinois, supra, at 369; it has said that in close
                     _____    ________________
cases the label is "`not  of paramount importance,' " Kurth Ranch, supra, at 777
                                                      ____________ ______
(citation  omitted); and  it has  looked behind  a "civil"  label fairly  often.
E.g., United States v. Halper, 490 U. S. 435, 447 (1989).
_____ _____________    _______
  In this circumstance, with important features of the  Act pointing in opposite
directions, I would place  particular importance upon those features  that would
likely distinguish  between a  basically  punitive and  a basically  nonpunitive
purpose.   United States v.  Ursery, 518 U. S. ___, ___  (1996) (slip op., at 9)
           _____________     _______
(asking  whether  a statutory  scheme was  so  punitive "`either  in  purpose or
effect'" to negate the legislature's " `intention to establish a civil  remedial
mechanism'") (citations  omitted).   And I note  that the  Court, in an  earlier
civil commitment case, Allen v. Illinois, 478 U. S., at 369, looked primarily to
                       __________________
the law's concern for treatment as

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an important distinguishing feature.   I do not believe that  Allen means that a
                                                              _____
particular law's lack of concern for treatment, by itself, is enough to  make an
incapacitative law punitive.   But, for reasons I  will point out, when a  State
believes  that treatment  does exist,  and then  couples  that admission  with a
legislatively required delay of  such treatment until a person is at  the end of
his jail  term (so that further  incapacitation is therefore necessary),  such a
legislative scheme begins to look punitive.
  In  Allen,  the  Court  considered  whether,  for  Fifth  Amendment  purposes,
      _____
proceedings  under an Illinois statute  were civil or  "criminal."  The Illinois
statute,  rather like  the Kansas  statute here,  authorized the  confinement of
persons who were sexually dangerous, who had committed at least one prior sexual
assault, and who suffered from a "mental disorder."  Id., at 366, n. 1.  T h e
                                                     ____
Allen  Court, looking behind the  statute's "civil commitment"  label, found the
_____
statute  civil  - in  important part  because the  State  had "provided  for the
treatment of  those it commits."  Id., at 370  (also referring to facts that the
                                  _____
State had "disavowed any interest in  punishment" and that it had "established a
system under  which committed persons may be released after the briefest time in
confinement").  
  In reaching this conclusion, the  Court noted that the State Supreme Court had
found  the proceedings  "`essentially civil'" because  the statute's  aim was to
provide "`treatment,  not punishment.'"  Id., at  367 (quoting  People v. Allen,
                                         _____                  _______   ______
107 Ill.  2d 91, 99-101, 481 N. E.2d 690,  694-695 (1985)). It observed that the
State had "a statutory obligation to provide  `care and treatment . . . designed
to  effect recovery'"  in a  "facility set  aside to  provide psychiatric care."
478 U. S., at 369 (quoting Ill. Rev.  Stat., ch. 38, (para.)105-8 (1985)).   And
it  referred to the  State's purpose as  one of "treating  rather than punishing
                                                 ________
sexually dangerous persons."  478 U. S., at

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                               KANSAS v. HENDRICKS                            11
                                      __

373; see also ibid. ("Had petitioner  shown, for example, that the confinement .
              _____
. . imposes .  . . a regimen which is essentially identical to that imposed upon
felons with no need for psychiatric care, this might well be a different case").
  The Allen  Court's focus upon  treatment, as  a kind of  touchstone helping to
      _____
distinguish  civil  from punitive  purposes, is  not  surprising, for  one would
expect  a nonpunitive  statutory  scheme  to confine,  not  simply  in order  to
protect,  but  also in  order to  cure.   That  is to  say,  one would  expect a
nonpunitively  motivated legislature that confines because of a dangerous mental
                                                   __________
abnormality to seek to help the individual himself overcome that abnormality (at
least  insofar as  professional  treatment for  the  abnormality exists  and  is
potentially  helpful, as  Kansas,  supported by  some  groups of  mental  health
professionals,  argues  is the  case  here, see  supra,  at 6).    Conversely, a
                                                 ______
statutory  scheme that  provides  confinement that  does  not reasonably  fit  a
practically  available,  medically  oriented  treatment objective,  more  likely
reflects a primarily punitive legislative purpose.
  Several  important treatment-related factors -  factors of a kind that led the
five-member  Allen majority to conclude that the Illinois' legislature's purpose
             ______
was primarily civil, not punitive - in this case suggest precisely the opposite.
First, the State Supreme  Court here, unlike the state court  in Allen, has held
                                                                 ______
that  treatment is  not a significant  objective of  the Act.   The Kansas court
wrote that the  Act's purpose  is "segregation of  sexually violent  offenders,"
with "treatment" a matter that  was "incidental at best."  259 Kan., at 258, 912
P. 2d, at 136.  By way of contrast, in Allen the Illinois court had written that
                                       _____
"`treatment, not punishment' " was "the aim of  the statute."  Allen, supra,  at
                                                               ______ ______
367 (quoting People v. Allen, 107 Ill. 2d, at 99-101, 481 N. E. 2d, at 694-695).
             _______   _______
  We have generally given considerable weight to the findings of state and lower
federal courts regarding the

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                                      __

intent or purpose  underlying state officials' actions,  see U. S. Term  Limits,
                                                             ___________________
Inc. v. Thornton, 514 U. S. ___,___ (1995)  (slip op., at 52) (ordinarily  "[w]e
____    _________
must . . .  accept the State Court's view of the purpose of its own law"); Romer
                                                                           _____
v. Evans,  517 U. S. ___, ___  (1996) (slip op., at  4); Hernandez  v. New York,
   ______                                                _________     _________
500   U. S.  352,  366-370  (1991)  (plurality);  id.,  at  372  (O'CONNOR,  J.,
                                                  ___
concurring); Edwards  v. Aguillard, 482  U. S. 578,  594, n. 15 (1987);  but see
             _______     __________
Department  of Revenue of Mont. v.  Kurth Ranch, 511 U. S., at  776, 780, n. 18;
_______________________________     ____________
Stone v. Graham,  449 U. S. 39,  40-43 (1980) (per curiam);  Consolidated Edison
_____    _______                              _____________  ___________________
Co.  of N.  Y. v.  Public Serv.  Comm'n of  N. Y., 447  U. S. 530,  533, 535-537
_______________    _______________________________
(1980), although the  level of deference given to such  findings varies with the
circumstances, Crawford  v. Board of Ed. of Los  Angeles, 458 U. S. 527, 544, n.
               ________     _____________________________
30  (1982), and is not always  as conclusive as a  state court's construction of
one of its statutes, see, e.g., R. A. V. v. St. Paul, 505 U. S. 377, 381 (1992).
                          ____  ________    _________
For example, Allen's  dissenters, as well as its  majority, considered the state
             _____
court's  characterization  of the  state law's  purpose  an important  factor in
determining  the  constitutionality  of that  statute.    Allen,  supra, at  380
                                                          _____   _____
(STEVENS, J., dissenting) (describing the state court as "the final authority on
the . . . purpose" of the statute).
  The  record provides  support for the  Kansas court's  conclusion.   The court
found that,  as of the time of  Hendricks' commitment, the State  had not funded
treatment, it  had not entered into  treatment contracts, and it  had little, if
any,  qualified  treatment staff.    See  Hendricks, 912  P.  2d,  at 131,  136;
                                          ___________
Testimony of Dr. Charles Befort, App. 255 (acknowledging that he has no special-
ized training); Testimony of John House, SRS Attorney, id., at  367 (no contract
                                                       ____
has been signed by bidders); Testimony of John House, SRS Attorney, id., at  369
                                                                    ____
(no one  hired to operate SVP program or to serve as clinical director, psychia-
trist, or psychologist).  Indeed, were we to follow the majority's invitation to
look

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                               KANSAS v. HENDRICKS                            13
                                      __

beyond the record in this case, an invitation with which we disagree, see infra,
                                                                          ______
at 20-21, it would reveal that Hendricks, according to  the commitment program's
own director, was  receiving "essentially no treatment."   Dr. Charles Befort in
State Habeas Corpus Proceeding, App. 393;  259 Kan., at 249, 258, 912  P. 2d, at
131, 136.  See  also App. 421 ("the treatment that is  prescribed by statute" is
"still not available");  id., at  420-421 (the "needed  treatment" "hasn't  been
                         ____
delivered yet" and "Hendricks has wasted  ten months" in "terms of treatment ef-
fects"); id., at  391-392 (Dr. Befort admitting  that he is not qualified  to be
         ___
SVP program director).
  It is therefore not surprising  that some of the Act's official supporters had
seen in it an opportunity permanently  to confine dangerous sex offenders, e.g.,
                                                                           _____
id., at 468 (statement of Attorney General Robert Stephan); id., at 475-476, 478
____                                                        ____
(statement of Special Assistant to the Attorney General Carla  Stovall).  Others
thought that  effective treatment did not  exist, id., at 503  (statement of Jim
                                                  ____
Blaufuss) ("Because there is no effective treatment for sex offenders, this Bill
may mean  a life sentence  for a felon  that is considered  a risk to  women and
children.  SO BE IT!") - a view, by the way, that the State of Kansas, supported
by  groups of informed  mental health professionals, here  strongly denies.  See
supra, at 6.   
______
  The  Kansas court  acknowledged the  existence of "provisions  of the  Act for
treatment" (although it called them "somewhat disingenuous").  259 Kan., at 258,
912 P. 2d, at  136.  Cf. Kan. Stat. Ann.  S59-29a01 (1994) (legislative findings
that "prognosis for  rehabilita[tion] . . . in a  prison setting is poor,  . . .
treatment  needs . . . long term" and  "commitment procedure for . . . long term
care and treatment . . . necessary"); S59-29a09 ("commitment . . . shall conform
to constitutional requirements for care and treatment").  Nor did the court deny
that Kansas could later increase the amount

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14                             KANSAS v. HENDRICKS
                                      __

of treatment it provided.   But the Kansas Supreme Court could, and did, use the
Act's  language, history, and initial implementation to help it characterize the
Act's primary purposes.
  Second, the  Kansas  statute insofar  as it  applies to  previously  convicted
offenders,  such as  Hendricks, commits,  confines, and  treats those  offenders
after they  have served virtually  their entire  criminal sentence.   That time-
_____
related circumstance  seems deliberate.   The Act  explicitly defers  diagnosis,
evaluation, and  commitment proceedings until a few  weeks prior to the "antici-
pated release" of a previously convicted offender from prison.   Kan. Stat. Ann.
S59-29a03(a)(1) (1994).   But why,  one might ask,  does the Act  not commit and
require treatment  of sex offenders sooner,  say soon after they  begin to serve
their sentences?
  An Act that simply seeks confinement, of course, would not need to begin civil
commitment proceedings sooner.  Such an Act would have to begin proceedings only
when   an  offender's  prison  term  ends,  threatening  his  release  from  the
confinement that imprisonment assures.  But  it is difficult to see why rational
legislators  who seek  treatment would  write the  Act in  this way  - providing
treatment years after the criminal act that indicated its necessity.  See, e.g.,
                                                                           _____
Wettstein, A Psychiatric Perspective  on Washington's Sexually Violent Predators
Statute, 15 U. Puget Sound L. Rev. 597, 617 (1992) (stating that treatment delay
leads to "loss  of memory" and  makes it  "more difficult for  the offender"  to
"accept responsibility," and  that time  in prison leads  to attitude  hardening
that "engender[s]  a distorted view of  the precipitating offense").   And it is
particularly  difficult to see why  legislators who specifically  wrote into the
statute a finding  that "prognosis for rehabilitating . . .  in a prison setting
is poor"  would leave an  offender in  that setting for  months or  years before
beginning treatment.  This is to say, the timing provisions of the

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                               KANSAS v. HENDRICKS                            15
                                      __

statute  confirm  the Kansas  Supreme  Court's  view that  treatment  was  not a
particularly important legislative objective.
  I  recognize one  possible counterargument.  A  State, wanting  both to punish
Hendricks (say, for deterrence purposes) and also to treat him, might argue that
it should  be permitted to postpone treatment until after punishment in order to
make certain that the punishment in fact occurs.  But any  such reasoning is out
of place here.   Much of  the treatment that  Kansas offered here (called  "ward
milieu" and "group therapy") can be given at  the same time as, and in the  same
place where,  Hendricks serves his  punishment.  See,  e.g., Testimony of  Leroy
                                                       ____
Hendricks, id., 142-143, 150,  154, 179-181 (stating that Washington  and Kansas
           _____
had both provided  group therapy to Hendricks,  and that he  had both taken  and
refused  such  treatment  at various  points);  Testimony  of  Terry Davis,  SRS
Director of Quality Assurance, id., at 78-81 (pointing out  that treatment under
                               _____
the  Act takes place  in surroundings very  similar to those  in which prisoners
receive treatment); Testimony of John House, SRS Attorney, id., at 375-376.  See
                                                           ____
also Task Force on Community Protection, Final Report to Booth Gardner, Governor
State  of Washington  II-2 (1989)  (findings of  Task Force  that developed  the
Washington  State Act,  which served as  a model  for Kansas'  Act, stating that
"[s]ex offenders can be treated during incarceration").  The evidence adduced at
the state habeas proceeding, were we to assume it properly before the Court, see
infra, at 20-21,  supports this conclusion as well.  See Testimony of Dr. Befort
_____
at  State Habeas  Proceeding, App.  399, 406-408  (describing treatment  as ward
milieu and group therapy);  id., at 416-417 (stating that Kansas  offers similar
                            _____
treatment,  on a voluntary basis, to  prisoners).  Hence, assuming arguendo that
it would be  otherwise permissible, Kansas need not  postpone treatment in order
to make certain that sex

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16                             KANSAS v. HENDRICKS
                                      __

offenders serve their  full terms of  imprisonment, i.e.,  to make certain  that
                                                    ____
they receive  the entire punishment that  Kansas criminal law provides.   To the
contrary,  the statement  in the  Act itself,  that the  Act aims to  respond to
special "long  term" "treatment  needs," suggests  that  treatment should  begin
during  imprisonment.   It also  suggests that,  were those  long-term treatment
needs  (rather than  further punishment)  Kansas' primary  aim, the  State would
require that treatment begin soon after  conviction, not 10 or more years later.
See  also Vt.  Stat. Ann.,  Tit. 18,  S2815 (1959)  (providing for  treatment of
sexual psychopaths first, and punishment afterwards).
  Third, the statute,  at least as of the  time Kansas applied it  to Hendricks,
did not  require the committing authority  to consider the possibility  of using
less restrictive alternatives, such  as postrelease supervision, halfway houses,
or other  methods that amici supporting  Kansas here have mentioned.   Brief for
                       _____
the Menninger  Foundation et al. as  Amici Curiae 28; Brief  for the Association
                                     ____________
for  the Treatment of Sexual  Abusers as Amicus Curiae 11-12.   The laws of many
                                         _____________
other States require such consideration.  See Appendix, infra.
                                                        _____
  This Court has said  that a failure to  consider, or to use,  "alternative and
less harsh methods"  to achieve a  nonpunitive objective can  help to show  that
legislature's "purpose . . .  was to punish."   Bell v. Wolfish,  441 U. S. 520,
                                                ____    ________
539, n. 20  (1979).  And  one can draw a  similar conclusion here.   Legislation
that seeks to  help the individual  offender as  well as to  protect the  public
would avoid  significantly greater restriction  of an individual's  liberty than
public  safety  requires.   See Keilitz,  Conn,  & Gianpetro,  Least Restrictive
Treatment  of  Involuntary  Patients:  Translating Concepts  into  Practice,  29
St. Louis U. L. J. 691, 693 (1985) (describing "least restrictive alternativ[e]"
provisions in  the ordinary civil commitment  laws of almost  all States); Lyon,
Levine, & Zusman, Patients' Bill of Rights: A

                           95-1649 & 95-9075 - DISSENT

                               KANSAS v. HENDRICKS                            17
                                      __

Survey  of State  Statutes,  6 Mental  Disability  L. Rep. 178,  181-183  (1982)
(same).    Legislation  that  seeks  almost  exclusively   to  incapacitate  the
individual through  confinement, however,  would not necessarily  concern itself
with  potentially less restrictive forms of incapacitation.  I would reemphasize
that  this is  not  a case  in  which the  State claims  there  is no  treatment
potentially  available.    Rather,  Kansas,  and supporting  amici,  argue  that
                                                             ______
pedophilia is treatable.  See supra, at 6.
                              ______
   Fourth, the  laws of other  States confirm, through  comparison, that Kansas'
"civil  commitment"  objectives do  not  require  the  statutory  features  that
indicate a  punitive purpose.   I have found  17 States with  laws that  seek to
protect  the  public  from  mentally abnormal,  sexually  dangerous  individuals
through civil commitment  or other mandatory treatment  programs.  Ten of  those
statutes,  unlike the Kansas statute, begin  treatment of an offender soon after
he has  been apprehended and  charged with a serious  sex offense.   Only seven,
like Kansas, delay  "civil" commitment  (and treatment) until  the offender  has
served his criminal sentence (and this figure includes the Acts of Minnesota and
New Jersey, both of which  generally do not delay  treatment).  Of these  seven,
however, six (unlike  Kansas) require consideration of less restrictive alterna-
tives.     See  Ariz.  Rev.  Stat.  Ann.  SS13-4601,  4606B  (Supp.  1996-1997);
Cal. Welf. &  Inst. Code  Ann.  SS6607,  6608  (West  Supp.  1997);  Minn. Stat.
S253B.09  (1996);   N. J.  Stat.  Ann.  30:4-27.11d  (West   1997);  Wis.  Stat.
S980.06(2)(b))  (Supp.  1993-1994);  Wash. Rev.  Code  Ann.  S71.09.090   (Supp.
1996-1997).   Only one State other  than Kansas, namely Iowa,  both delays civil
commitment  (and  consequent treatment)  and does  not explicitly  consider less
restrictive alternatives.  But the law of that State applies prospectively only,
thereby  avoiding ex post  facto problems.   See Iowa Code  Ann. S709C.12 (Supp.
                  ______________
1997) (Iowa SVP act only "applies to persons convicted of a sexually

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18                             KANSAS v. HENDRICKS
                                      __

violent offense on or after  July 1, 1997"); see also Appendix, infra.  Thus the
                                                                _____
practical  experience of other States,  as revealed by  their statutes, confirms
what the  Kansas Supreme  Court's finding, the  timing of  the civil  commitment
proceeding,  and the  failure to  consider less restrictive  alternatives, them-
selves suggest, namely, that for  Ex Post Facto Clause purposes, the  purpose of
                                  _____________
the Kansas  Act (as applied to  previously convicted offenders) has  a punitive,
rather than a purely civil, purpose.
  Kansas  points to  several cases  as support  for a  contrary conclusion.   It
points to Allen - which is, as we have seen, a case in which the Court concluded
          _____
that  Illinois'  "civil  commitment" proceedings  were  not  criminal.   I  have
explained in detail, however, how  the statute here differs from that  in Allen,
                                                                          ______
and why Allen's  reasoning leads to a  different conclusion in this  litigation.
        _____
See supra, at 9-16.
    ______
  Kansas  also  points to  Addington  v. Texas,  where the  Court held  that the
                           _________     ________
Constitution does not require application of criminal law's "beyond a reasonable
doubt" standard in  a civil commitment proceeding.  441 U.  S., at 428.  If some
criminal law guarantees  such as "reasonable doubt" did not  apply in Addington,
                                                                      __________
should  other guarantees, such  as the prohibition  against ex  post facto laws,
                                                            ______________
apply here?   The  answer to this  question, of course,  lies in  the particular
statute  at issue in Addington - a Texas  statute that, this Court observed, did
                     _________
"not exercis[e]" state power "in a punitive sense."  Ibid.  That statute did not
                                                     _____
add civil commitment's confinement to imprisonment; rather civil commitment was,
at most, a substitute  for criminal punishment.  See  Tex. Rev. Civ. Stat.  Ann.
S5547-41 (1958)  (petition must state  "proposed patient is  not charged  with a
crime  or . . .  charged [but]    . . . transferred  . . . for  civil commitment
proceedings").  And this Court, relying on the Texas Supreme Court's interpreta-
tion, wrote that the "State of Texas confines only for the purpose of provid-

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                               KANSAS v. HENDRICKS                            19
                                      __

ing care  designed to  treat the individual."   Addington, supra,  at 428,  n. 4
                                                __________ ______
(citing  State  v. Turner,  556  S.  W.  2d 563,  566  (1977)).   Cf. Specht  v.
         _____     _______                                            ______
Patterson, 386 U. S. 605, 608-609 (1967) (separate postconviction sexual psycho-
__________
path  commitment/sentencing proceeding  held  after conviction  for serious  sex
crime, imposes  a "criminal punishment even though . . . designed not so much as
retribution as . . . to keep individuals from inflicting future harm").  Nothing
I say here would change the reach or holding of Addington in any way.  That  is,
                                                _________
a State is free to commit those who  are dangerous and mentally ill in order  to
treat them.  Nor does my decision preclude a  State from deciding that a certain
subset  of people  are  mentally  ill,  dangerous,  and  untreatable,  and  that
confinement of this subset is therefore  necessary (again, assuming that all the
procedural  safeguards of  Addington are in  place).   But when  a State decides
                           _________
offenders can be treated and confines an offender to provide that treatment, but
then  refuses to  provide it,  the  refusal to  treat  while a  person is  fully
incapacitated begins to look punitive.
  The majority suggests  that this is the very  case I say it  is not, namely  a
case of a mentally ill person who is untreatable.  Ante, at 18.  And it quotes a
                                     ____________________
long excerpt  from the Kansas Supreme  Court's opinion in support.   That court,
however,  did not  find that  Hendricks was  untreatable; it  found that  he was
                                                    ____
untreated - quite a different matter.  Had the Kansas Supreme Court thought that
       __
Hendricks, or  others like him, are  untreatable, it could not  have written the
words that follow that excerpt, adopting by reference the words of another court
opinion:

   "The  statute forecloses the possibility that offenders will be evaluated and
   treated until after they have been punished. . . . Setting aside the question
   of  whether a prison term exacerbates or  minimizes the mental condition of a
   sex offender, it plainly delays

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20                             KANSAS v. HENDRICKS
                                      __

   the treatment that must constitutionally accompany commitment pursuant to the
   Statute.   The failure of the Statute to provide for examination or treatment
   prior  to the  completion  of the  punishment  phase strongly  suggests  that
   treatment is of secondary, rather than  primary, concern."  259 Kan., at 258,
   912 P. 2d, at  136 (quoting Young v. Weston, 898 F. Supp.  744, 753 (WD Wash.
                               _____    ______
   1995)).

This  quotation, and  the rest  of the  opinion, make  clear  that the  court is
finding  it objectionable that the Statute, among other things, has not provided
adequate treatment to one who, all parties here concede, can be treated.
                                                         ____
  The majority  suggests  in the  alternative that  recent evidence  shows  that
Kansas  is now providing treatment.   Ante, at 19-21.   That evidence comes from
                                      ____
two sources.  First, a statement by the Kansas Attorney General at oral argument
that those committed under the Act are now receiving treatment.  Ante, at 20-21.
                                                                 ____
And second,  in a footnote, a Kansas trial judge's  statement, in a state habeas
proceeding  nearly  one  year after  Hendricks  was  committed,  that Kansas  is
providing  treatment.   Ante, at  21 n.  5. I  do not  see  how either  of these
                        ____
statements  can be  used to  justify the  validity of  the Act's  application to
Hendricks at the time he filed suit.
  We are reviewing the Kansas Supreme Court's determination of Hendricks'  case.
Neither the majority nor the lengthy  dissent in that court referred to the  two
facts that the majority now seizes upon, and for good reason.  That court denied
a motion to take  judicial notice of the state  habeas proceeding, see Order  of
Kansas Supreme  Court, No. 94-73039, March 1, 1996.   The proceeding is thus not
part of the  record, and cannot properly be  considered by this Court.   And the
Kansas Supreme  Court obviously had no chance to consider Kansas' new claim made
at oral argument before this Court.  There is simply no evidence in the

                           95-1649 & 95-9075 - DISSENT

                               KANSAS v. HENDRICKS                            21
                                      __

record  before  this Court  that comes  even close  to resembling  the assertion
Kansas made at oral  argument.  It is the  record, not the parties' view  of it,
that  must control our decision.  See  Russell v. Southard, 12 How. 139, 158-159
                                       _______    _________
(1851); Adickes v. S. H. Kress & Co., 398 U. S. 144, 157-158, n. 16 (1970); Hopt
        _______    __________________                                       ____
v. Utah,  114 U. S. 488, 491-492  (1885); Witters v. Washington  Dept. of Servs.
   _____                                  _______    ___________________________
for Blind, 474 U. S. 481, 489 n. 3  (1986); New Haven Inclusion Cases, 399 U. S.
__________                                  __________________________
392, 450,  n. 66 (1970); R. Stern,  E. Gressman, S. Shapiro,  K. Geller, Supreme
Court Practice 555-556, 594 (7th ed. 1993); Fed. Rule Evid. 201(b).
  The  prohibition on facts found outside  the record is designed  to ensure the
reliability of the evidence  before the Court.  For  purposes of my argument  in
this dissent, however,  the material that the majority wishes  to consider, when
read in its entirety, show that Kansas was not providing treatment to Hendricks.
                                           ___
At best,  the  testimony  at  the state  hearing  contained  general  and  vague
references that treatment was about to be provided, but it contains no statement
                                                                    ____________
that Hendricks  himself was receiving treatment.   And it  provides the majority
                ________
with no support at all in respect to that key fact.  Indeed, it demonstrates the
contrary conclusion.  For example, the program's director, Dr. Befort, testified
that  he would  have to  tell the  court  at Hendricks'  next annual  review, in
October  1995, that Hendricks "has had no opportunity for meaningful treatment."
App. 400.   He also stated  that SVPs were receiving  "essentially no treatment"
and that the program does not "have adequate staffing."   Id., at 393, 394.  And
                                                          ___
Dr. Befort's  last words made clear that Hendricks has  "wasted ten months . . .
in  terms of treatment  effects" and that,  as far as  treatment goes, "[t]oday,
it's still not available."  Id., at 420-421.  Nor does the assertion made by the
                            ___
Kansas Attorney  General at oral argument  help the majority.   She never stated
that Hendricks, as opposed
     _________

                           95-1649 & 95-9075 - DISSENT

22                             KANSAS v. HENDRICKS
                                      __

to other SVPs, was receiving  this treatment. And we can find no support for her
statement in the record.
  We have found no other  evidence in the record to support the conclusion  that
Kansas was in fact providing the treatment that all  parties agree that it could
provide.   Thus, even had the Kansas Supreme Court considered the majority's new
evidence  -  which  it  did  not  -  it  is  not  likely  to  have  changed  its
characterization of  the Act's treatment provisions  as "somewhat disingenuous."
259 Kan., at 258, 912 P. 2d, at 136.
  Regardless, the Kansas  Supreme court did so characterize the  Act's treatment
provisions and did  find that treatment was "at best" an "incidental" objective.
Thus,  the circumstances  here  are different  from  Allen, where  the  Illinois
                                                     _____
Supreme Court explicitly found that the statute's  aim was to provide treatment,
not punishment.  See supra, at 10-12.   There is no evidence  in the record that
                     _______
contradicts  the finding  of the  Kansas court.   Thus,  Allen's approach  - its
                                                         _____
reliance on the State court - if followed here  would mean the Act as applied to
Leroy Hendricks  (as opposed to  others who may  have received treatment  or who
_______________
were sentenced after the effective date of the Act), is punitive.
  Finally, Kansas points to  United States v.  Salerno, 481 U. S. 739  (1987), a
                             _____________     ________
case in which this Court held preventive detention of a dangerous accused person
pending  trial constitutionally  permissible.   Salerno,  however, involved  the
                                                ________
brief detention of  that person, after a finding of "probable cause" that he had
committed a  crime that would justify  further imprisonment, and only  pending a
speedy judicial determination  of guilt or  innocence.   This Court, in  Foucha,
                                                                         _______
emphasized  the fact  that  the confinement  at issue  in Salerno  was "strictly
                                                          _______
limited in duration."  504 U. S., at 82.  It  described that "pretrial detention
of arrestees" as "one of those carefully limited exceptions permitted by the Due
Process Clause."  Id., at 83.  And it held that Salerno did not
                  ____                          _______

                           95-1649 & 95-9075 - DISSENT

                               KANSAS v. HENDRICKS                            23
                                      __

authorize the  indefinite detention, on  grounds of dangerousness,  of "insanity
acquittees  who are not  mentally ill  but who  do not prove  they would  not be
dangerous  to others."    504 U. S.,  at 83.   Whatever Salerno's  "due process"
                                                        _______
implications may be, it does not focus upon, nor  control, the question at issue
here, the question of "punishment" for purposes of the Ex Post Facto Clause.
                                                       _____________
  One  other  case  warrants  mention.   In  Kennedy  v.  Mendoza-Martinez,  372
                                             _______      _________________
U. S. 144  (1963),  this Court  listed seven  factors  that helped  it determine
whether a particular statute was primarily punitive for purposes of applying the
Fifth and Sixth Amendments.   Those factors include whether  a sanction involves
an affirmative  restraint, how  history has regarded  it, whether it  applies to
behavior already a crime, the  need for a finding of scienter,  its relationship
to a traditional  aim of punishment, the  presence of a nonpunitive  alternative
purpose, and whether it is excessive in relation to that purpose.   Id., at 169.
                                                                    ____
This  Court  has  said that  these  seven factors  are  "neither  exhaustive nor
dispositive," but nonetheless "helpful."  Ward, 448 U. S., at 249.  Paraphrasing
                                          _____
them  here,  I  believe the  Act  before  us involves  an  affirmative restraint
historically regarded as punishment; imposed upon behavior already a crime after
a finding of scienter; which restraint, namely confinement, serves a traditional
aim  of punishment,  does not primarily  serve an  alternative purpose  (such as
treatment) and is  excessive in  relation to any  alternative purpose  assigned.
372 U. S., at 168-169.
  This is to  say that  each of  the factors  the Court  mentioned in  Martinez-
                                                                       _________
Mendoza on balance argues here in favor  of a constitutional characterization as
_______
"punishment."   It  is not  to say  that I  have found  "a single  `formula' for
identifying  those  legislative  changes  that  have  a  sufficient   effect  on
substantive   crimes  or   punishments   to  fall   within  the   constitutional
prohibition," Morales, 514 U. S., at ___ (slip op., at 9); see also 
              ________

                           95-1649 & 95-9075 - DISSENT

24                             KANSAS v. HENDRICKS
                                      __

Halper, 490  U. S., at 447; id., at 453 (KENNEDY,  J., concurring).  We have not
_______                     ____
previously done so,  and I do not do  so here.  Rather, I have  pointed to those
features of the  Act itself, in the context of this  litigation, that lead me to
conclude, in light of our precedent,  that the added confinement the Act imposes
upon  Hendricks  is basically  punitive.   This  analysis, rooted  in  the facts
surrounding  Kansas'  failure to  treat  Hendricks, cannot  answer  the question
whether the  Kansas  Act,  as  it  now  stands, and  in  light  of  its  current
implementation, is punitive  towards people other than he.  And I do not attempt
to do so here.
                                       III
  To find that the confinement the Act imposes upon Hendricks is "punishment" is
to find a violation of the Ex Post Facto Clause.  Kansas does not  deny that the
                           _____________
1994  Act  changed the  legal consequences  that  attached to  Hendricks earlier
crimes, and in a  way that significantly "disadvantage[d] the  offender," Weaver
                                                                          ______
v.  Graham, 450 U. S. 24, 29  (1981).  See Brief for  Respondent State of Kansas
    _______
37-39.
  To find a violation  of that  Clause here, however,  is not  to hold that  the
Clause prevents Kansas, or other States, from enacting dangerous sexual offender
statutes.  A  statute that operates prospectively, for example,  does not offend
the Ex  Post Facto Clause.   Weaver, 450 U. S., supra,  at 29.   Neither does it
    ______________           _______
offend  the Ex Post Facto Clause for a  State to sentence offenders to the fully
            _____________
authorized sentence, to seek consecutive, rather than concurrent,  sentences, or
to invoke recidivism  statutes to  lengthen imprisonment.   Moreover, a  statute
that  operates retroactively, like Kansas'  statute, nonetheless does not offend
the Clause if the confinement that it imposes is not punishment - if, that is to
           ____________________________________________________
say,  the legislature  does not  simply add  a later  criminal punishment  to an
earlier one.  Ibid.
              _____

                           95-1649 & 95-9075 - DISSENT

                               KANSAS v. HENDRICKS                            25
                                      __

  The statutory provisions before us do amount to punishment primarily  because,
as I have said, the legislature  did not tailor the statute to fit  the nonpuni-
tive  civil aim of treatment, which it  concedes exists in Hendricks' case.  The
Clause in these circumstances does not  stand as an obstacle to achieving impor-
tant protections for the  public's safety; rather it provides an assurance that,
where  so significant  a restriction  of an  individual's basic  freedoms is  at
issue,  a State  cannot cut corners.   Rather,  the legislature must  hew to the
Constitution's  liberty-protecting line.   See  The  Federalist, No. 78,  p. 466
(C. Rossiter ed. 1961) (A. Hamilton).
  I therefore would affirm the judgment below.

                           95-1649 & 95-9075 - DISSENT

26                             KANSAS v. HENDRICKS
                                      __

APPENDIX:
SELECTED SEXUAL OFFENSE COMMITMENT STATUTES
(Kansas is the only State that answers "yes"
                            to all three categories)

                         State    Delays   Fails to    Applies
                         State    Delays   Fails to    Applies
                                  Treat-   Consider    to Pre-
                                  Treat-   Consider    to Pre-
                                  ment     Less Re-    Act
                                  ment     Less Re-    Act
                                           strictive   Crimes
                                           strictive   Crimes
                                           Alterna-
                                           Alterna-
                                           tives
                                           tives
                 Ariz. Rev.       Yes      No
                 Stat. Ann.                                *
                 SS13-4601 et
                           __
                 seq. (Supp.
                 ____
                 1996-1997)

                 Cal. Welf. &     Yes      No          Yes
                 Inst. Code
                 Ann. SS6600 et
                             __
                 seq. (West
                 ____
                 Supp. 1997) 

                 Colo. Rev.       No       Yes         Some-
                 Stat.                                 times
                 S16-11.7-101
                 et seq. (Supp.
                 _______
                 1996)
                 Conn. Gen.       No
                 Stat. S17a-566                 *          *
                 et seq. (1992
                 _______
                 and Supp.
                 1996)

                 Ill. Comp.       No       No
                 Stat., ch. 
                 725, S205 et
                           __
                 seq. (1994)
                 ____

                 Iowa Code Ann.   Yes      Yes         No
                 ch. 709C
                 (Supp. 1996)

                           95-1649 & 95-9075 - DISSENT

                               KANSAS v. HENDRICKS                            27
                                      __

                 Kan. Stat.       Yes      Yes         Yes
                 Ann. S59-29a01
                 et seq. (1994)
                 _______

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

                 Minn. Stat.      Some-    No          Yes
                 Ann., ch. 253B   times
                 (1994 and
                 Supp.
                 1996-1997)
                 Neb. Rev.        No       No          General
                 Stat. S29-2923                        ly not
                 et seq. (Supp.
                 _______
                 1996)

                 N. J. Stat.      Some-    No              *
                 Ann. 30:4-82.4   times
                 et seq. (West
                 ________
                 1997)

                 N. M. Stat.      No       No              *
                 Ann S43-1-1 et
                             __
                 seq. (1993)
                 ____
                 Ore. Stat.       No       Yes         General
                 S426. 510 et                          ly not
                           __
                 seq. (1995)
                 ____

                 Tenn. Code       No       Yes             *
                 Ann. S33-6-301
                 et seq. (1984
                 _______
                 and Supp.
                 1996)

                 Utah Code Ann.   No       Yes         General
                 S77-16-1 et                           ly not
                          __
                 seq. (1995)
                 ____
                 Wash. Rev.       Yes      No          Yes
                 Code Ann.
                 S71.09.01 et
                           __
                 seq. (1992 and
                 ____
                 Supp.
                 1996-1997)

                           95-1649 & 95-9075 - DISSENT

28                             KANSAS v. HENDRICKS
                                      __

                 Wis. Stat.       Yes      No          Yes
                 S980.010 et
                          __
                 seq. (1996)
                 ___

(* = designation that the statute does not specify)